This article is the first in the series "Lessons from a Human Rights Catastrophe." The complete series is available here.
One of the most vexing questions Andrés Manuel López Obrador will face as president of Mexico is what to do about the country’s armed forces. For more than a decade, they have engaged in a “drug war,” with disastrous results for human rights and public security, and a corrosive impact on the rule of law. The problem, in a nutshell, is that the military is operating throughout much of Mexico with little or no effective control by civilian authorities. The Interior Security Law passed last year, if implemented in its current form, will only make matters worse.
President Enrique Peña Nieto inherited this catastrophe from his predecessor, Felipe Calderón, who within weeks of taking office in 2006 deployed Mexican troops en masse to confront organized crime in several parts of the country. The deployments were initially presented as temporary to support civilian police forces that found themselves outgunned by powerful and ruthless criminal organizations. But by the end of the Calderón’s presidency, they had become permanent in many places, with the armed forces effectively substituting for—rather than merely supporting—the police.
The legal basis for Calderón’s policy was dubious. Article 129 of the Constitution establishes that “in times of peace, no military authority will perform functions other than those that are strictly related to military discipline.” The Calderón administration justified using the military by citing a 1996 Supreme Court ruling that the military could participate in public security activities at the request of civilian authorities. But that ruling established a clear requirement that the military serve an “auxiliary” role, supporting civilian forces, not replacing them. That is not what has happened.
What might have made it easier to ignore this requirement was the National Security Law that was enacted under President Vicente Fox. This earlier law defined “threat to national security” to include any “obstacles to military and naval operations to combat organized crime.” Some in Mexico interpreted this definition to mean that the armed forces could participate in public security operations within the country. This was, at best, a dubious reading. In any case, a 2008 constitutional reform that established (in article 21) that “public security institutions will be civilian” should have cleared up any confusion. Apparently it did not.
Peña Nieto could have reversed the militarization of public security. But he chose not to. As a candidate, he promised to extract the armed forces from law enforcement and replace them with a new 40,000-member police force called the National Gendarmerie. But this promise was largely forgotten once he took office, and the militarization has continued unabated. Between 2012 and 2017, the number of “mixed operation” military bases— that also have police and prosecutors—grew from 75 to 182, with coverage expanding from 19 to 27 states. The number of military personnel assigned to these bases nearly tripled. In contrast, the size of the federal police force has barely changed, remaining under 40,000, with the new “gendarmerie” never amounting to more than 5,000 officers.
The militarization of public security has had predictably disastrous results. Mexico’s armed forces, like those in any other country, are made for warfare, not law enforcement, and have a history of grave violations against civilians. Deploying them to contain criminal violence was like throwing fuel on a fire. Under Calderón, it produced widespread abuses—including executions, enforced disappearances and torture. It failed to reduce the violence. Indeed, it may have been a factor contributing to the dramatic increase in homicides over these years.
Calderón’s militarization was especially dangerous because of the lack of effective civilian control over the armed forces. The Mexican military is one of the least transparent and accountable in the hemisphere. Until recently, this was due largely to holding on to the archaic practice of giving the military exclusive jurisdiction over abuses by its personnel. The prosecutors and judges in the military justice system—themselves officers under orders of the military high command—served to ensure impunity for the abuses.
When Peña Nieto began his presidency, Mexico had just taken an historic step toward finally bringing its armed forces under the rule of law. In September 2012, the Supreme Court had issued the last in a series of rulings establishing that civilian authorities should investigate, and prosecute in civilian courts, abuses by military personnel against civilians. Yet, the federal prosecutor’s office (PGR) has made very little progress during Peña Nieto’s term in prosecuting these cases. From 2012 to 2016, it opened more than 500 investigations against soldiers but obtained only 16 convictions, according to a study by the Washington Office on Latin America, a nongovernmental group.
Possibly the only fully independent investigation that the military faced during the Peña Nieto presidency was by the International Group of Independent Experts, which was established to review the case of the disappearance of the 43 students from Ayotzinapa. But the Defense Ministry refused to allow the investigators to interview any military personnel. Apparently, the Attorney General’s Office and the Interior Ministry made concerted efforts to persuade the military to cooperate, but they could not compel it to do so. If that were the case it would be a remarkable testament to the degree to which the Mexican military is able to operate outside the control of the civilian government.
The only state institutions that have proven willing to take on the military are Mexico’s autonomous agencies. The National Human Rights Commission (Comisión Nacional de Derechos Humanos, CNDH) has issued dozens of recommendations during the Peña Nieto presidency that found the armed forces responsible for abuses against civilians. The National Transparency Institute (Instituto Nacional de Transparencia, Acceso a la Información y Protección de Datos Personales, INAI) has also played a key role as enforcer of the right to information, allowing civil society to obtain information about the military’s human rights practices.
But the National Human Rights Commission has no authority to enforce its recommendations, and the military routinely disregards many of them. And the Transparency Institute has little leeway to approve information requests when the Defense Department invokes national security.
It was in this context that the Interior Security Law was passed. Its ostensible aim was to establish clearer rules for military operations within the country. Perhaps the most appealing argument for these rules was that they might force elected officials to take responsibility for the country’s public security catastrophe. Using the military to combat organized crime had allowed them to put off the hard work of building civilian police forces capable of doing the job. The law would oblige governors and the president to justify military interventions, which would require acknowledging the failings of their own police forces in safeguarding public security. Moreover, by formally requesting military intervention, these authorities would assume the political responsibility for the outcome.
Unfortunately, it is very unlikely that the Interior Security Law that was passed will promote any such political reckoning. On the contrary, it grants the armed forces greater freedom from—and authority over—civilian authorities. Even though the law establishes procedures for requesting military intervention (article 20), it also states that the military can act on its own—and on a permanent basis—to “prevent” or “attend” to “risks” to interior security (article 26) or to national security (article 6). In other words, military interventions targeting organized crime will not need a request by civilian authorities.
Moreover, the law establishes that when the military is deployed in “interior security” operations, the president will designate a military commander, proposed by the armed forces, to “coordinate,” “direct,” and “assign” the “mission” of each civilian authority who participates (article 20). The military will not need to limit itself to an auxiliary and subordinate role. It will be in charge.
As for the more fundamental question of whether the armed forces can be involved in public security at all, the law pretends to resolve the constitutional problem with a semantic sleight of hand. Article 18 states: “In no case will the interior security activities carried out by armed forces be considered or have the status of public security.” In other words, the constitutional restriction is evaded by a legally sanctioned fiction. As the Mexican constitutional scholar Alejandro Madrazo has written: “The law doesn’t prohibit the armed forces from carrying out public security activities; it prohibits everyone else from calling them what they are.”
It gets worse. The law reinforces the already considerable opacity of the armed forces and extends it to police participating in “interior security” activities. Article 9 states: “Information generated with the aim of implementing this law will be considered of National Security, in accordance with applicable legal provisions.” While this provision does not change the substantive rules governing what sort of information should be accessible, it will make getting it far more onerous and time-consuming. By applying the label “national security” to all information generated by activities covered in the law, Article 9 is likely to encourage officials to classify this information as a matter of course, shifting the burden to those seeking the information to show that it is not covered, through an appeals process that can be lengthy. Moreover, even if the petitioners eventually obtain a favorable ruling, they could face additional delays lasting many months—or even a reversal of the ruling—if the president’s office appeals to the Supreme Court on “national security” grounds.
Equally troubling is Article 31, which obliges all “federal authorities” to turn over information “required” by military or civilian institutions involved in interior security. This obligation extends even to the National Human Rights Commission and the Transparency Institute, which could allow the armed forces to obtain the identities of people who seek access to improperly classified information or denounce military abuses. The loss of guaranteed anonymity would create a powerful deterrent for would-be petitioners.
These and other provisions of the law have caused alarm in Mexico and abroad. The highest authorities on human rights at the United Nations and the Organization of American States have voiced concern. López Obrador announced in August that he would take a position vis-à-vis the law after the Supreme Court had resolved the constitutional challenges presented by the CNDH, INAI, and others.
The future of the Interior Security Law now depends on the Supreme Court. It is an historic opportunity for the judiciary to clarify, once and for all, what limits exist on the role that the armed forces can play in Mexico’s domestic affairs. At stake is not only the question of whether the armed forces should participate in public security, but whether they are to be subordinated to effective civilian control and subject to the rule of law.
If the court allows the Interior Security Law to stand in anything like its current form, López Obrador should immediately ask Congress to repeal the law in its entirety. But he should also pledge to work with Congress, as well as with state and municipal governments, and, especially, with Mexican civil society, to strengthen the capacity of the state to contain organized crime and reduce violence. Amongst other things, that would imply finding a more effective way to address the dynamic that many have identified as the main cause of the country’s ongoing public security catastrophe: the use of the military as a substitute for civilian law enforcement.
UPDATE: On November 15, 2018, the Mexican Supreme Court ruled that the Interior Security Law was unconstitutional and in violation of Mexico’s international obligations because it “[normalized] the use of the armed forces in public security issues.” Several justices also considered that Congress overstepped its powers in legislating on the matter. The day before the ruling, then-president-elect López Obrador announced that he would create a military-controlled National Guard and that his party would propose constitutional reforms to be able to do so. (Read Human Rights Watch’s statement on why López Obrador’s proposal is dangerously misguided here.)
Daniel Wilkinson is the Americas managing director at Human Rights Watch.