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I. SUMMARY

When Mexican voters ended seven decades of one-party rule in July 2000, they opted for a candidate who promised to change the way their country was governed. That promise—repeated by the new president, Vicente Fox, on the campaign trail and once again in office—was to replace a prevailing climate of corruption and impunity with one of transparency, accountability, and respect for human rights.

No one expected real change to come overnight. The problems inherited by the new government were chronic, manifold, and deeply rooted in the very institutions designed to address them. The justice system, in particular, had for years failed to stop abusive state practices. In some instances it even encouraged them.

Perhaps the most glaring failure of the Mexican justice system was the way it had allowed egregious human rights violations to go unpunished. These violations included the massacres of student protesters in 1968 and 1971, and the torture, execution, and forced disappearance of hundreds of civilians during the country’s “dirty war” in the 1970s and early 1980s. Under international law, Mexico was obligated to investigate and prosecute these crimes. Yet for three decades it had failed to do so.

The impact of this failure was profound. Hundreds of torture victims had struggled for years with crippling psychological wounds while their tormentors went free, unpunished and even rewarded by the state. Thousands of family members had suffered the anguish of not knowing the fate of “disappeared” loved ones while successive administrations refused to provide information that might have eased their plight. And Mexican society as a whole had assimilated the ultimate lesson in the limits of their country’s rule of law: not even the most horrific crimes of government officials would be prosecuted.

In November 2001, President Fox announced the creation of a mechanism aimed at redressing this failure—a special prosecutor’s office that would investigate and prosecute abuses committed against members of political and social groups during the previous regime. To facilitate the investigation—and end years of state secrecy surrounding what had taken place—the president ordered the release of millions of classified documents from the government agencies that had been involved in internal security operations.

It was Mexico’s first official recognition of its obligation to investigate and prosecute these past abuses—and it was significant not only because it came from the president, but also because it appeared to be backed by the same institutions whose agents had either committed the abuses or failed to investigate them. The Interior Ministry (which controlled the internal security agencies) had helped to design the Special Prosecutor’s Office and, in the following months, took charge of collecting and transferring once classified documents. The Attorney General’s Office promised to provide the Special Prosecutor’s Office with all the material and technical resources it needed to carry out its mission. The military (though not directly involved in the creation of the Special Prosecutor’s Office) had recently begun endorsing accountability for human rights violations and, in 2002, would initiate its own prosecution of “dirty war” abuses.

A year and a half later, the Special Prosecutor’s Office has produced few significant results, prompting an increasing number of observers to ask whether it is up to the difficult task it has been assigned.

To answer this question, Human Rights Watch conducted a research mission to Mexico in May 2003. We interviewed dozens of victims and relatives who have been working with the Special Prosecutor’s Office—and in some cases have been struggling for years on their own—to advance investigations into their cases. We interviewed local human rights advocates who expressed deep frustration with the slow progress of the work of the Special Prosecutor’s Office, but appeared ready to collaborate with it to bring about results. Finally, we interviewed officials within the Special Prosecutor’s Office who, for the most part, appeared to be committed to doing the best they could under what they described to be adverse circumstances.

In Human Rights Watch’s estimation, the lack of progress in the investigations has not been from lack of trying. It cannot be explained merely by the difficulty of the cases, nor the shortcomings that exist within the office itself. The overriding problem is, rather, the failure of the Mexican government to provide the Special Prosecutor’s Office with the support it needs to do its work. This lack of support has manifested itself in several ways:

Limited resources: Investigators and prosecutors within the Special Prosecutor’s Office have been operating without the material and human resources they need, given the large number and the difficulty of the cases they are handling;

Limited access to government documents: Access to declassified documents has been seriously impaired by the way the government archives have been administered;

Limited military cooperation: The Mexican military has not been fully forthcoming with information requested by the Special Prosecutor’s office, and it has interfered with the special prosecutor’s work by pursuing its own investigation and prosecution of some of the same cases.

In addition to these deficiencies, which hinder its ability to investigate past abuses, the Special Prosecutor’s Office faces major legal hurdles which could limit its ability to prosecute those responsible for them. Mexican courts may find that many—if not most—of the crimes can no longer be prosecuted due to statutory limitations. Already a judge has rejected the office’s first and only request for arrest warrants on precisely those grounds. And President Fox himself confirmed this danger when he said, in November 2002, that the time allotted by statutory limitations had probably run for most of the cases under investigation. The president’s observation—and the fact that some experienced Mexican jurists share this view—suggests a disturbing lack of concern within the government about the viability of the Special Prosecutor’s Office. If it is true that the prosecutions are pre-ordained to fail, why was the office created in the first place?

The Special Prosecutor’s Office was meant to provide the Mexican state with a means of fulfilling its obligation to address past abuses. But it runs the risk of doing the opposite. The creation of a “special” entity may have merely made it easier for the state’s “regular” institutions to duck their responsibility—leaving it to this new office to do what they should have been doing all along, and to take the blame when, and if, it fails to produce results.

The predicament of the Special Prosecutor’s Office illustrates a more general problem with human rights in Mexico today. Over the past two and a half years, the government has taken important steps toward promoting accountability. But, upon closer scrutiny, these initiatives appear to be merely half-steps. They may be headed in the right direction, but they are insufficient to reach their stated goals. Two examples of these half-steps discussed in this report are the release of classified documents and the military’s endorsement of human rights prosecutions, neither of which has lived up to its promise.

The Special Prosecutor’s Office is, itself, the most troubling example of a half-step. Its creation represented an important breakthrough for accountability in Mexico. But unless the government takes aggressive measures to shore up the work of the special prosecutor, the whole exercise could collapse and the promise of a new era of accountability and respect for human rights in Mexico will be left unfulfilled.

Recommendations

Human Rights Watch believes that the investigations being carried out by the Special Prosecutor’s Office can still produce significant results. To make that happen, the government should do all it can to ensure that:

  • Investigators and prosecutors within the Special Prosecutor’s Office receive adequate resources and training;
  • Declassified documents are readily available to the Special Prosecutor’s Office, as well as to the general public;
  • Military officials provide all requested information and cease to assert jurisdiction over cases under investigation by the Special Prosecutor’s Office.

When it comes to prosecutions, Human Rights Watch is not convinced that statutes of limitations present an insurmountable problem. In interviews with Mexican lawyers and jurists, we found widely divergent views on whether and how prosecutors can prosecute the crimes under investigation. Where we did find consensus, however, was in the belief that prosecutors will need to navigate uncharted legal terrain and develop novel arguments that are acceptable to Mexican courts—and that it will be difficult for the lawyers in the Special Prosecutor’s Office to do so without the assistance of more experienced and influential jurists. In other words, in the prosecutions as in the investigations, it will be difficult for the Special Prosecutor’s Office to go it alone.

Instead, the Fox administration should take responsibility for addressing the statutory limitations issue. One way to do so would be for the president to convene a special task force or commission consisting of distinguished jurists and lawyers representing relevant private and state institutions that would work to ensure that:

  • A broad consensus is generated regarding the nature of the legal hurdles facing the special prosecutor and the appropriate legal strategies that can be adopted to overcome them.

Whatever the ultimate outcome of the prosecutions, the government should also begin developing a strategy to ensure that:

  • Information gathered by the Special Prosecutor’s Office regarding past human rights abuses is widely disseminated to the Mexican public.

Finally, it is important that the government not forget that the obligation to investigate and prosecute past abuses—and hence to ensure the success of the Special Prosecutor’s Office—lies with the state as a whole. Responsibility for the office’s failure—if it should come to that—will ultimately lie with all the state institutions and actors that failed to do all they could to make it work.



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July 2003