IV. Accountability: Ongoing Impunity for Past Atrocities ^¹⁷¹

Among the most dramatic examples of the lack of accountability of Mexico’s old regime were the atrocities committed against student activists, armed insurgents, and other actors deemed to be threats to national security. At their most extreme, 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 failed to do so.

The impact of this failure was profound. Hundreds of torture victims struggled for years with crippling psychological wounds while their tormentors went free, unpunished and even rewarded by the state. Thousands of family members suffered the anguish of not knowing the fate of “disappeared” loved ones while successive administrations refused to provide information that might have eased their pain. And, while the violence did not have a direct impact on the vast majority of Mexicans, it did force Mexican society as a whole to assimilate the ultimate lesson in the limits of their country’s rule of law: the regime that governed them was willing to commit—and able to get away with—even the most brutal of crimes.

For decades, the regime’s victims, their relatives, and diverse members of civil society called for an end to this historic failure. Vicente Fox, during his 2000 presidential campaign, responded to this call by promising to establish a truth commission that would end the cover-up of these crimes. Then, after a year in office, he announced that, instead of creating an independent commission, he had instructed his attorney general to establish a special prosecutor’s office to address the cases.

The initiative was the result of a compromise between members of the administration who had endorsed the idea of a truth commission and others who had opposed it. Yet, in theory at least, the initiative held the possibility of accomplishing even more than what the advocates of a commission had hoped for. Not only would the office investigate and document the past crimes, it would also prosecute those responsible for them. It would, in other words, pursue both truth and justice.

Four years later, the results of this important initiative have been deeply disappointing. The Special Prosecutor’s Office has succeeded in obtaining the arrest and indictment of the former head of the secret police and three other security officials—something that would have been unthinkable in Mexico until very recently. It has also won an important ruling from the Supreme Court that prevents these and other officials from using statutes of limitations to shield themselves from prosecution in cases involving “disappeared” victims whose whereabouts remain unknown.

But these successes have been eclipsed by major setbacks. The office has opened criminal investigations in over six hundred forced disappearance cases, but filed charges in only fifteen of them. It has obtained arrest warrants for twelve former officials, but only six have actually been arrested, and only four of these are facing trial in civilian courts. The special prosecutor’s most ambitious move—his effort to obtain indictments of former president Luis Echeverría—was rejected by the courts. And, as of this writing, the office has not obtained a single conviction.

Perhaps the most substantial accomplishment of the Special Prosecutor’s Office, in addition to the indictments and the favorable Supreme Court ruling, has been the production of an ambitious draft report on the history of the crimes under investigation. (The final version had not been released as this Human Rights Watch report went to press.) The draft report systematizes new evidence culled from the secret archives that Fox released in 2002, integrating it with new and old witness testimony, to construct the most complete account to date of the role of the state—and in particular the military—in numerous human rights atrocities.

Yet this draft report is, itself, the clearest evidence that the Special Prosecutor’s Office has not yet lived up to its potential. Even its main author has conceded that the report contains only a small fraction of the information that could have been collected if a more serious investigation had been carried out. At the same time, however, it reveals the existence of extensive evidence in government archives implicating former officials and military officers—a level of documentation that has never been found in countries like Argentina and Chile, where prosecutors have managed to prosecute many similar crimes. Given the type of evidence that is now available, Mexico should be able to make similar progress in promoting accountability for past human rights abuses.

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 “regular” institutions of the justice sector to continue to duck their responsibility— leaving it to the new office to do what they should have been doing all along, and to take the blame for its failure to produce more substantial results.

Yet the failure of the Special Prosecutor’s Office to achieve more substantial results is, ultimately, the responsibility of the Fox administration itself. After launching the ambitious initiative, the administration failed to ensure that the office possessed the resources, credibility, and powers it needed to succeed. It also failed to ensure the active collaboration from other institutions, such as the Federal Investigation Agency (Agencia Federal de Investigación, AFI), which has been unable or unwilling to execute a majority of the arrests warrants obtained by the special prosecutor.

The institution that has shown the least willingness to collaborate with the Special Prosecutor’s Office is the one that could potentially contribute the most: the Mexican military. While the Defense Ministry has declassified important documents from the “dirty war” era, it has done virtually nothing to help investigators understand or locate evidence within the released files, or obtain information that appears to be absent from those files. Moreover, military prosecutors have insisted on pressing charges in military courts against military officers for the crimes that the special prosecutor is investigating, potentially sabotaging efforts to prosecute the crimes in civilian courts, where human rights cases belong.

Shortly before this report went to press, the Fox administration announced, inexplicably, that it intended to close the Special Prosecutor’s Office within a matter of weeks. To do so would mean, essentially, consigning to failure the country’s first serious effort to promote accountability for these atrocities. But, whether or not the office does close, Mexico’s obligation to complete the work it began—to end the years of impunity for these crimes—will remain as pressing as ever. And just as President Fox inherited full responsibility for this ongoing impunity from his predecessors, so the next president will inherit it from Fox.

Human Rights Watch believes that the work begun by the Special Prosecutor’s Office can still be salvaged, but only if aggressive steps are taken to overcome the obstacles, detailed in this chapter, that have hindered the investigation and prosecution of these crimes until now. These steps should include ordering the military to cooperate fully with civilian prosecutors, promoting legislation that would expand the tools available to those prosecutors, and, finally, establishing a truth commission that would reinforce efforts to prosecute these crimes.

Background

History of Abuses

On October 2, 1968, in the Tlatelolco section of Mexico City, government troops opened fire on a student demonstration, killing or wounding hundreds of protestors and establishing what would be a modus operandi for handling threats to the political establishment in the coming years: repressive violence followed by official denial and silence.

There would be no serious investigation of the “Tlatelolco Massacre”—nor of the “Corpus Christi Massacre” that followed three years later, in which student demonstrators were attacked by thugs enlisted, trained and armed by the government.

In the coming decade, the Mexican government would carry out repeated and systematic human rights abuses against political opponents and dissidents in what came to be known as the country’s “dirty war.” Its targets included armed groups and their sympathizers, real or alleged, as well as student activists and other people who participated in protests, but never armed activity. Its methods included torture, extrajudicial execution, and forced disappearance, and often entailed an extreme degree of brutality and wanton disregard for human life.

One resident of Atoyac de Álvarez, Guerrero, for example, described to Human Rights Watch how he had been detained by the army in 1974 and held for two weeks, blindfolded and subject to daily torture, which included cigarette burns and electrical shocks to his testicles. His captors demanded that he confess to having participated in the killing of several soldiers—a crime he insists he had not committed. He resisted their pressure, even as some his fellow prisoners were beaten to death, but finally capitulated when told that his family would be killed if he did not sign the confession.¹⁷²

Others fared even worse. José Ignacio Olivares Torres, a guerrilla leader from Guadalajara, was captured by the Federal Security Directorate (Dirección Federal de Seguridad, DFS) in January 1974. Three days later his body appeared on a street in his home city, with signs of torture that included the holes where scorching hot nails had been driven into his kneecaps. His face was so disfigured that his family was only able to identify him by his teeth and some scar tissue that had been left by an earlier surgery.¹⁷³

Hundreds of people were detained by security forces and never seen again. During 1974, an air force plane made regular night flights out of a military base in Guerrero to dump bodies out over the Pacific Ocean. According to former air force personnel who participated in the flights, the prisoners were shot in the head just before being boarded on the plane, though some were still alive when tossed out the cargo door.¹⁷⁴

The violence left profound scars on the victims and their relatives. One torture victim told Human Rights Watch that, because of severe blows he had received to his head while in detention, he had been unable to return to work and had been supported the last three decades by his children.¹⁷⁵ Another recalled suffering from anxiety attacks and being unable to complete his university studies because he found it impossible in the wake of his torture to concentrate on his studies.¹⁷⁶

The relatives of the “disappeared” suffered a particularly cruel fate—waiting in vain for years for the news that might allow them to bury their dead and begin a process of mourning. The cruelty was compounded by the Mexican government’s refusal to provide them with information about what had happened to their family members—or to prosecute those responsible.

Human Rights Watch spoke with dozens of people in Atoyac de Álvarez, Guerrero, who recalled months and years of desperation and despair as they visited government offices, military bases, and prisons searching for lost loved ones. Wherever they went, they were rebuffed, and in some cases even threatened with reprisals if they persisted in their search.

One Atoyac resident described how, in the mid-1970s, after months of searching for a son who had been detained by soldiers, she managed to get a meeting with the commander of a local military base. The officer told her to go home and wait for her son. “So I went home and waited,” she recalled. “But I couldn’t take it. I almost went crazy. I wanted to cry. I wanted to scream. I wanted to run. I couldn’t eat. I couldn’t sleep. So I prayed to God to give me the peace of mind to wait. And I waited day and night. And I have never stopped waiting.”¹⁷⁷

Another Atoyac resident described how her family had hounded the Attorney General’s Office (Procuraduría General de la República, PGR) about the case of her brother who had been detained by soldiers in 1974 and never seen again.¹⁷⁸ After five years, the PGR responded with a document that alleged that the brother had been living a “troubled life,” borrowing money from prostitutes and provoking fights with their pimps. The note claimed that he had been detained by “various individuals,” who had demanded he return money taken from a brothel.¹⁷⁹ The family sought to refute this account by providing the PGR with a series of letters from local authorities and former employees that attested to the brother’s good conduct as well as his relatively well-off economic condition (to disprove the allegations he had borrowed money from prostitutes).¹⁸⁰ But they never received any clarification from the government until, in 2001, a report of the National Human Rights Commission confirmed that the brother had indeed been the victim of a forced disappearance carried out by soldiers.¹⁸¹

Another resident described how, in 1998, she and a group of other relatives of “disappeared” people brought their cases to the federal prosecutor’s office in Atoyac de Álvarez. When the attending prosecutor heard the nature of their cases, he told them he could not receive it and left the office. A few minutes later a car full of soldiers showed up in front of the office and appeared to stand guard at the front door. The relatives waited for several hours and were finally able to get another prosecutor to take the case when a television news reporter showed up and began filming their interaction. But the case languished in the office for months.¹⁸²

After years of campaigning by victims’ relatives and national human rights groups, the PGR (finally did open an investigation into the “disappearance” cases in Atoyac de Álvarez in 1999. But in 2000, the PGR decided it did not have jurisdiction over the cases and turned them over to the military justice system—which had, itself, consistently failed to investigate and prosecute abuses committed by military personnel.

By November 2001, thirty-three years after the Tlatelolco massacre, there had still been no serious effort to prosecute these or other human rights violations committed during that era.

Mexico’s Obligations under International Law

Mexico is party to several international treaties that prohibit human rights violations, including torture, arbitrary detention, extrajudicial execution, and forced disappearance.¹⁸³ The Mexican government’s obligation under these treaties is not only to prevent violations, but also to investigateand prosecuteany violations that do occur.

This second set of duties is, in part, a corollary to the first, reflecting the view that effective prevention requires investigation and punishment.¹⁸⁴ It also derives from the right to a legal remedy that these treaties extend to victims of human rights violations. The American Convention on Human Rights, for example, states that every individual has “the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights.”¹⁸⁵ The Inter-American Court of Human Rights has held that this right imposes an obligation upon states to provide victims with effective judicial remedies.¹⁸⁶

In addition to the obligation to investigateand prosecute, states have an obligation to informthe public about the violations that took place. This obligation also derives partly from the states’ duty to prevent future violations. As the Inter-American Commission on Human Rights (IACHR) has held, “Every society has the inalienable right to know the truth about past events, as well as the motives and circumstances in which aberrant crimes came to be committed, in order to prevent repetition of such acts in the future.”¹⁸⁷

The state has a special obligation in cases of forced disappearance to provide information to the victims’ relatives. The U.N. Human Rights Committee has held that the extreme anguish inflicted upon relatives of the “disappeared” makes them direct victims of the violation as well.¹⁸⁸ To the extent the state fails to inform relatives about the fate of the “disappeared,” it fails to fulfill its basic obligations.¹⁸⁹ In addition, the Inter-American Court has held that states’ obligation to provide reparation to victims of abuses translates into an obligation to provide family members with information about what has happened to people who have “disappeared.”¹⁹⁰

Given this duty to inform, the duty to investigate violations must be understood as distinct from the duty to prosecutethem. According to the Inter-American Court:

The duty to investigate . . . continues as long as there is uncertainty about the fate of the person who has disappeared. Even in the hypothetical case that those individually responsible for crimes of this type cannot be legally punished under certain circumstances, the State is obligated to use the means at its disposal to inform the relatives of the fate of the victims and, if they have been killed, the location of their remains.¹⁹¹

Finally it is important to stress that not just any sort of investigation will suffice to fulfill this obligation. The IACHR has found that, “when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised.”¹⁹² The result is “de facto impunity,” which “has a corrosive effect on the rule of law and violates the principles of the American Convention.”¹⁹³

The Special Prosecutor’s Office

Creation and Mandate

On November 27, 2001, after decades of secrecy and denial, the Mexican state officially recognized the acts of political violence perpetrated by its security forces during the “dirty war” of the 1970s and early 1980s. In a public ceremony in Mexico City, the National Human Rights Commission (Comisión Nacional de Derechos Humanos, CNDH) released a three thousand page report on state abuses committed during that era.¹⁹⁴ The report was based largely on information from secret government archives on more than five hundred people who had been reported missing. It confirmed that at least 275 of those missing had been arrested, tortured, and killed by state security forces.

After the CNDH presented its report, President Fox announced the creation of a special prosecutor’s office to investigate and prosecute past abuses committed against dissidents and opposition groups by state security forces.¹⁹⁵ He also instructed the attorney general to establish a “Support Committee,” made up of “citizens of public standing and experience in the judicial branch or in the promotion of human rights,” that would provide the special prosecutor with assistance in the investigations, and instructed the interior minister to establish an “interdisciplinary committee” to develop a proposal for providing reparations to the victims of abuses.

The executive order establishing the Special Prosecutor’s Office specifically instructed the Defense Ministry to turn over to the prosecutor’s office any information relevant to the cases to be investigated. And it instructed the Interior Ministry to release secret government archives with information on these abuses, so that it would be readily available to the special prosecutor, as well as to the public at large.

Within a few weeks, the attorney general named a legal scholar, Ignacio Carrillo Prieto, to serve as the special prosecutor, and by mid-January 2002, the office was up and running. Its staff of fifteen prosecutors was divided into three sections. The first would address the forced disappearance cases already investigated by the CNDH, as well as other similar cases from the “dirty war.” The second section was charged with examining the 1968 and 1971 massacres of student protestors.¹⁹⁶ The third section would explore other abuses not covered by the first two (with no fixed time limit).

In addition to these sections, the Special Prosecutor’s Office set up a documentation center whose task was to collect relevant information from the secret government documents that were set to be released, as well as from other government archives. The office also set up a two-person team to develop a program to provide psychological care to the victims and relatives of past abuses.

Results after Four Years

The Special Prosecutor’s Office has broken some important new ground in its efforts to end official impunity in Mexico. But its few successes have been eclipsed by major setbacks in a variety of areas.¹⁹⁷

The Massacre Cases

The special prosecutor’s most notorious setbacks have come in the two most emblematic crimes of the old regime—the massacres of student protestors in 1968 and 1971. Today, one of the cases is effectively dead; the other just barely alive.

The Special Prosecutor’s Office began work on the two massacre cases after the Supreme Court ordered the PGR to investigate them in 2002. It focused first on the 1971 massacre and, in July 2004, charged eleven people, including former president Luis Echeverría, with “genocide” for the killings that had taken place then. A federal judge rejected the charges, arguing that the statute of limitations had run for the alleged crime. The Special Prosecutor’s Office filed an appeal, which eventually reached the Supreme Court. In June 2005, the Court ruled that that the statute of limitations had indeed run for everyone except Echeverría, and the former interior minister Mario Moya y Palencia. The Court reasoned that the clock on the statute of limitations had been suspended during the years Echeverría and Moya y Palencia had enjoyed immunity from prosecution due to their government posts. Consequently, the thirty-year period allowed for prosecution had not yet terminated. The Supreme Court sent the case back to the trial court to determine whether the charges were sufficiently substantiated to proceed to trial. A month later, the trial judge ruled that they were not and closed the case, a ruling that is not subject to appeal.

In the 1968 case, the Special Prosecutor’s Office charged eight former officials, including Luis Echeverría, with “genocide” in September 2005. The office also charged Echeverría and two other ex-officials with responsibility for a forced disappearance case. Once again, a judge rejected the genocide charge for everyone, except Echeverría, on the grounds that the period allowed for prosecution by the statute of limitations had run. The judge also rejected the charges in the case of Echeverría, but on the grounds that there was not sufficient evidence that the alleged crime constituted “genocide.” The Special Prosecutor’s Office has appealed the ruling in the 1968 case. This time, however, the Supreme Court has declined to review the appeal, and it is currently under review by a lower court.

The only charge from the 1968 massacre that can proceed, according to the trial judge, is the case of the single forced disappearance. Yet here the judge found that the Special Prosecutor’s Office had failed to establish probable cause of criminal responsibility. In other words, this one case could still go forward, but only if the prosecutors are able to present more compelling evidence to substantiate their charge.

The Forced Disappearance Cases

The Special Prosecutor’s Office has made some progress in a number of other forced disappearance cases. It has filed charges of “abduction” (privación ilegal de la libertad) in fifteen of these cases and obtained indictments in nine of them.¹⁹⁸ It has obtained arrest warrants for twelve former officials, but only six have actually been arrested. Since Mexico does not permit trials in absentia, prosecutions can only proceed against those former officials who are under arrest.

One of those six is Miguel Nazar Haro, the former director of the DFS. The case involves the forced disappearances of Jesús Piedra Ibarra and Ignacio Salas Obregón, both members of the guerrilla group “Liga Comunista 23 de Septiembre.”¹⁹⁹ Nazar Haro was arrested in February 2004, but released from jail and placed under house arrest the following November, as a result of a 2004law that allows people over seventy years old to avoid jail time while in preventive detention.²⁰⁰ The case is currently stalled due to the defense’s efforts to summon a witness who cannot be found. (There is no legal time limit for this evidence to be incorporated into this case, and the first stage of the trial may not conclude until the testimony is given before the judge.)

A second person facing trial is Juventino Romero Cisneros, a former Nuevo Leon state judicial police official, who is charged with the “abduction” of Jesús Piedra Ibarra.²⁰¹ Romero Cisneros has presented two injunctions, which are now being reviewed by an appeals court after having been rejected by the trial court.

A third person facing “abduction” charges in case of Jesús Piedra Ibarra is Carlos G. Solana Macías, former judicial police director in Nuevo León state.²⁰² The Special Prosecutor’s Office concluded its investigation into this case in 2004, but Solana Macías was not detained until December 2005. Solana Macías has presented an injunction, which remains pending.

The fourth person facing trial is Wilfredo Castro Contreras, former commander of the judicial police in Guerrero state, charged with “abduction” in the disappearance case of Bernardo Reyes Félix, an alleged member of a guerrilla group in Guerrero state.²⁰³ Like Nazar Haro, Castro Contreras has benefited from the 2004 law and is under house arrest. The case is currently stalled due to the defense lawyers’ efforts to summon an expert witness.

In two other cases, the prosecutions have been derailed by questionable actions by the judges. One involves “abduction” charges against Alejandro Straffon Arteaga, former state attorney in Hidalgo, for the “disappearance” of six members of the guerrilla group “Brigada Campesina Los Lacandones.” After Straffon was arrested, a judge refused to indict him, setting him free instead. The Special Prosecutor’s Office appealed the ruling and won an order from an appeals court to re-arrest Straffon. But Straffon has since eluded capture.

In another case, the special prosecutor filed “abduction” charges against General Francisco Quirós Hermosillo in August 2005 for the 1974 abduction of Rosendo Radilla in Guerrero. The judge issued an arrest warrant, but then turned the case over to the military justice system, arguing Quirós Hermosillo was a military official and was accused of an act that he committed while on duty. The decision, which has since been upheld by an appeals court, sets a disturbing precedent for the hundreds of forced disappearance cases involving military personnel that have yet to be prosecuted. (The problem of military jurisdiction over these cases is discussed in detail below.)

The Historical Report

In addition to the indictments in the “forced disappearance” cases, the other area where the Special Prosecutor’s Office has made some significant progress is in producing an ambitious draft report on the history of the crimes under investigation.

The significance of the report is twofold. First, the report contains new evidence that has been culled from the secret archives that Fox “opened” in 2002—including documentation from the military’s archives which had been completely inaccessible in the past. For years, the only evidence available regarding these abuses had been the testimony of victims and their relatives, which had been painstakingly gathered by local rights groups. In its detailed report in 2001, the CNDH supplemented such testimony with official documentation on many of the crimes drawn from the secret archives from the defunct Federal Security Directorate (Dirección Federal de Seguridad). These documents clearly showed that the victims, before being “disappeared,” had been detained and held by security forces.

The report from the Special Prosecutor’s Office has expanded upon the documentation from the DFS archives and added documents from the military itself. These documents provide detailed information of some of the military operations that took place in Guerrero at the time of the “disappearances”; clear evidence that the military routinely detained civilians; the names of people or identification of military units involved in the operations, including the detentions; and clear evidence that the defense secretary and (at least in a few cases) the president knew about the detentions.

The military documents generally do notprovide the names of the detainees, nor any direct indication that they were subject to torture, murder, or forced disappearance. Nor do they provide direct evidence that the top military and civilian officials knew that detainees were suffering such a fate. However, combined with the DFS documents and the testimony, they provide the fullest picture to date of the state’s repressive machinery at work.

This, then, is the second reason the new draft report is significant: it has begun the crucial work of integrating and cross-referencing information from the military documents with the information already available in the CNDH report, and witness and victim testimony gathered by civil society groups.

What Remains to Be Done

The draft report, while representing a significant advance, is also the clearest evidence that the Special Prosecutor’s Office has not lived up to its potential. Its principal author, José Sotelo, acknowledges that the report contains only a small fraction of the information that could have been collected if a more serious investigation had been carried out. According to Sotelo, there are significant portions of the declassified military archives that his understaffed and unpaid team did not have time to examine, and there are substantial gaps in those portions of the files that they did review. “What appears in the report is only 15 percent of the information that’s in the archives,” Sotelo told Human Rights Watch. “It’s just the tip of the iceberg.”²⁰⁴

In addition to the archival research that remains to be done, Sotelo told Human Rights Watch that his team has been unable to complete other important tasks. One is to document the abuses committed by the armed groups that the state was combating. Another is to create a database detailing all the evidence available on each individual case of forced disappearance—a crucial step for demonstrating the solid evidentiary basis of the report’s findings.

Despite its obvious shortcomings, however, the draft report does contain important evidence implicating former officials in the abuses under investigation. In fact, with the exception of Guatemala, Paraguay, and most recently Argentina, no other country in the region has seen secret documentation of this sort made public. And yet, even without the benefit of such compelling evidence, prosecutors elsewhere have been able to make significant progress in prosecuting similar cases. In Argentina, for example, over 330 former military and police personnel are now facing human rights-related charges and about 180 are detained in prisons or military installations, or are under house arrest. In Chile, over ninety former military and police officers have been convicted, and hundreds of other cases are currently being prosecuted.

Clearly, with the sort of evidence they have at their disposal, Mexican prosecutors should be able to accomplish much more in these cases than they have to date. If hopes for prosecuting those responsible for the 1968 and 1971 massacre cases have dimmed considerably, there is no good reason at this point for Mexico not to prosecute many of the hundreds of cases of forced disappearances (including the one case linked to the 1968 massacre).

Aside from prosecutions, the single most important unfulfilled task in the eyes of the victims’ families is to determine the ultimate fate of the “disappeared.” To date, the Special Prosecutor’s Office has determined the whereabouts of only six out of the more than six hundred people who “disappeared” during the “dirty war.” (It found that four of these were sent to psychiatric institutions, and two were killed while in detention.²⁰⁵)

In this respect, it is important to keep in mind that Mexico’s obligation under international law is not only to prosecutethe abuses but also to inform the public—and especially the victims—about what exactly took place. When Human Rights Watch asked the relatives of the “disappeared” in Guerrero what they hoped to obtain from the Special Prosecutor’s Office, the vast majority answered simply: the truth about what took place and the location of their loved ones.

A final task that remains pending is providing reparations to the victims of past abuses and their relatives. While the “interdisciplinary committee” established by the Interior Ministry has reportedly developed a proposal for a reparations program, it has not yet been implemented.

Obstacles to Accountability

The Fox administration presented the Special Prosecutor’s Office as an initiative that would combine the functions of a truth commission with those of a criminal prosecutor. The office would both investigate and prosecute past human rights atrocities. It would seek, in other words, to provide both truth and justice where before there had been only official denials and impunity. Yet the office has confronted daunting obstacles that have seriously hindered its progress in both areas.

Obstacles to Truth

Unwilling Witnesses

One basic obstacle to resolving past human rights cases has been the unwillingness of former government officials and military officers to testify regarding what they know. With few exceptions, former members of the security apparatus that carried out these abuses have been unwilling to provide information.

The special prosecutor has summoned several former officials, including former president Luis Echeverría Álvarez and former Mexico City regent Alfonso Martínez Domínguez, to testify about their alleged involvement in the 1968 Tlatelolco massacre. The interrogations produced little new information, however. Echeverría chose not to respond to the special prosecutor's questions (exercising his constitutional right against self-incrimination), and Martínez Domínguez denied all responsibility. Former general Luis Gutiérrez Oropeza, head of the Presidential Security, also declined to answer the special prosecutor’s questions, as did Miguel Nazar Haro and Luis de la Barreda Moreno, both former heads of the Federal Directorate of Security.

In the forced disappearance cases, the Special Prosecutor’s Office has sought testimony from only five retired military officers and ten former civilian officials.²⁰⁶ Only one has provided useful testimony, though he later retracted it. The rest have either denied any knowledge of the events, or exercised their constitutional right to remain silent rather than provide potentially self-incriminating testimony. “The biggest obstacle we’ve encountered,” one top prosecutor told Human Rights Watch, “is the big silence” that has been kept by those who knew what happened.²⁰⁷

Such silence is hardly surprising. Whether it’s a matter of esprit-de-corps, or simply the fear of self-incrimination, former officials rarely reveal much in circumstances like these. Moreover, they have nothing to gain by testifying. Mexico does not allow for plea bargaining, except in cases of organized crime. Consequently, the Special Prosecutor’s Office has no way to encourage witnesses to testify.

While the Special Prosecutor’s Office has been able to gather substantial testimony from eyewitnesses and surviving victims, even many of them are reluctant to collaborate with investigators. In Guerrero, where a majority of the “disappearance” cases took place, the distrust is particularly pronounced.²⁰⁸ A police investigator told us that the vast majority of relatives he sought out to provide declarations did not want to talk to him about their cases. Only two out of thirty people this agent tracked down were willing to answer his questions, and many were made visibly nervous by his presence. He said that his colleagues had reported similar experiences.²⁰⁹

The unwillingness of former military and security personnel to testify has made it virtually impossible to determine the ultimate fate of the “disappeared.” According to various researchers who have worked in the government archives, including the head researcher, no documentary evidence has been found in the government archives with that information—and it seems unlikely that any will be found. A more promising method for determining the fate of the “disappeared” would be to conduct exhumations at the site of clandestine graves where many have presumably been buried. The problem here, however, is locating the burial sites. According to the world-renowned Argentine Team of Forensic Anthropologists (Equipo Argentino de Antropología Forense, EAAF), which conducted a preliminary mission to Mexico in September 2003 at the behest of the Special Prosecutor’s Office, it would be very difficult to find the remains of victims without having “direct witnesses” who could point out precisely where investigators should dig.²¹⁰

Incomplete archives

Given the unwillingness of current and former state actors to testify about past abuses, the Special Prosecutor’s Office has had to turn to another source of evidence: the documents they left behind in their institutional archives. Indeed, according to the Special Prosecutor’s Office, these documents have provided more than 90 percent of the new evidence the office has obtained during its four years in operation.²¹¹ Unfortunately, however, the Special Prosecutor’s Office’s ability to exploit this source has also been severely limited by several of the factors we described in Chapter 3.

One important limiting factor has been the government’s failure to ensure that key archives turned over by the Interior Ministry (including the DFS archive) were adequately equipped with the basic research aids that any archive needs to function: a complete index and catalogue of its contents. More than 50 percent of the collections in the archives are not indexed or catalogued, and the catalogues that do exist are rough and incomplete. As a result, investigators from the Special Prosecutor’s Office had little guidance when they began searching the archives for information on the abuse cases.²¹²

To compensate for the lack of indexes and catalogues, the documentation center of the Special Prosecutor’s Office was forced to develop its own—slowly mapping the archives’ content based on the documents brought to them by the archive staff. This has proven to be an enormously arduous and time-consuming task, given that the archive contains millions of documents—and today it remains far from complete. For example, as we described in Chapter 3, in one of the two key galleries of the archives containing government documents covering the “dirty war” years, six hundred out of three thousand boxes in the second gallery are indexed. The boxes sent to the National Archive by SEDENA are amongst the six hundred indexed ones, but the index is rough and simple and does not contain detailed information about the content of each box. Therefore, when researchers want to look for information in this gallery, they have to look at all boxes, one by one, and see if there is information that could be valuable for their research because there is no way of knowing, beforehand, what is in each box.

As we discuss below, the documentation team never had adequate personnel to complete their archival research. “There’s a sea of information in the archives,” the current director of the team said. “With time and resources one could accomplish a lot. But the time ran out on us.”²¹³

Once the archives were mapped out and the researchers were able to comb through a substantial portion of the files, it became clear that there was another and even more serious problem with their contents: the apparent lack of documents relevant to a number of the most important questions.

The files appear to lack any information about the ultimate fate of the hundreds of people who were “disappeared” during the “dirty war.” While there is evidence of arbitrary detention in many cases—sufficient to establish the forced disappearance of the victims—what’s missing is information about what happened to them after they were detained, how they were killed, and what was done with their bodies.

Also lacking are documents directly or indirectly identifying who did the killing, who authorized it, who knew about it, and who could have stopped it. This is not to say that there isn’t sufficient and even compelling evidence to convict some of those who were responsible. But building a case for conviction based on circumstantial evidence is far more difficult than building one based on direct evidence of participation in—or knowledge of—the crimes.

The absence of such documentation may well result from the fact that the criminals had the foresight to avoid leaving any paper trail. But, as we saw in Chapter 3, there are also glaring examples of documentation that does not exist, but logically should. For example, although the National Archive contains a series of documents referring to a 1969 ceremony to honor members of the “Olimpia Battalion” who “died in compliance of their duty on October 2, 1968, in the Tlatelolco Plaza,” there are no other documents describing the role the battalion played during the massacre that took place then and there. Moreover, there is no other reference in any other document to the existence of the Olimpia Battalion.²¹⁴ There is only one document from SEDENA that recognizes that there were nineteen military officials injured, but there is no reference to military officials that died during that day.

Yet another example of missing documentation involves the archives of the PGR. Although these archives were not released along with the others in 2002, investigators from the Special Prosecutor’s Office did have access to them. And, while they were able to find the case files for investigations that the PGR had opened against civilians detained during the 1968 and 1971 massacres, they found that all the case files for the investigations of the crimes committed against civilians had been removed.²¹⁵ (Investigators from the Special Prosecutor’s Office did find more recent case files for investigations into the removal of those earlier case files, but these did not yield any clues about the original events.)

In sum, the archives have been an invaluable source of information. But to navigate them effectively, and to fill in the major gaps in its contents, the Special Prosecutor’s Office would have benefited enormously from the active collaboration on the part of the institutions that generated those documents—the institutions whose members participated in the crimes under investigation. Such collaboration was not forthcoming.

Obstruction by the Military

If there is one state institution that could fill in the holes in the investigations, it is the Mexican military. Military personnel participated in many—if not most—of the crimes, and the institution itself is directly implicated in their abusive practices. The Mexican military has a clear obligation to advance efforts to resolve these crimes and ensure that those responsible are brought to justice. This obligation is established in Mexican and international law. It was explicitly included in the executive order that created the Special Prosecutor’s Office.²¹⁶ And it has even been publicly recognized by the top brass of the military on various occasions.

Yet the military’s record on fulfilling this obligation has been one of abject failure. While it is true that SEDENA turned over hundreds of boxes of files to the National Archive, as we noted above, there are mysterious gaps in the documents that appear in the archives. Moreover, it is extremely difficult for an outsider to navigate through what is there. While SEDENA did provide a general catalogue of the files in the archives, it did not provide a detailed index of the contents of those files. And, according to the chief investigator of the Special Prosecutor’s Office, much of what was there was written in code and largely incomprehensible to the unschooled reader.²¹⁷ SEDENA has not provided the investigators from the Special Prosecutor’s Office with any guidance that would make it easier to locate relevant information.

When investigators from the Special Prosecutor’s Office have requested information directly from the military, they have been routinely told that the information did not exist. When, for example, the Special Prosecutor’s Office requested information about the military personnel who were assigned to a military checkpoint in a specific town in Guerrero, the Military Prosecutor’s Office (Procuraduría de Justicia Militar, PGJM) responded that “no information was found relating to the incidents that you mention.”²¹⁸ When asked for the names of the officers who served at the Atoyac military base in 1974, the PGJM responded that the Special Prosecutor’s Office would have to provide the officers’ names itself, explaining that “given the constant promotions and demotions of personnel in the Battalion and the time that has passed since 1974, it is not feasible to provide the documentation in the archives as it has been requested.”²¹⁹

Even when the Special Prosecutor’s Office has provided the names of specific officers, the PGJM has claimed that it could not find files on those individuals. In one case, the Special Prosecutor’s Office provided not only the name and rank of an officer, but also the military base he had served at and the dates he served there—yet still, the PGJM claimed it could find no information on the officer.²²⁰

The military has also consistently refused to provide information regarding civilians who “disappeared” after being held in military installations. When asked by the Special Prosecutor’s Office for any information regarding individuals who were last reported seen alive in military detention, the PGJM has insisted that it could find no information. Typical was the response it gave to the Special Prosecutor’s Office’s inquiry regarding Alberto Arroyo Dionisio. According to both eyewitnesses and a DFS document cited in the CNDH’s 2001 report, Arroyo was held for two months by the military in Guerrero and then sent to Military Base Number One. Yet the PGJM reported to the Special Prosecutor’s Office that “[after] a meticulous search in the corresponding archives, no records were found indicating that the person entered any military prison.”²²¹

Not only has the military proven unwilling or unable to provide critical information about the “dirty war” crimes, it has publicly denied or downplayed the military’s role in past abuses. When asked, for example, about the “Brigada Blanca,” the counterinsurgency group responsible for many of the “dirty war” crimes, Defense Secretary Clemente Vega insisted that it was “something that doesn’t concern the military.” He also claimed that the Brigada Blanca had not used Military Base Number Oneas a base of operations.²²²

This denial by the institution’s top officer reflects the position taken by the institution in response to queries by the Special Prosecutor’s Office and independent investigators. When investigators within the Special Prosecutor’s Office conducted an inspection of Military Base Number One, the military officers accompanying them insisted that they knew nothing about the detention of civilians.²²³ And, as was documented in Chapter 3, when one journalist who has written extensively on the “dirty war” used the transparency law to request a list of civilians held at Military Base Number One, SEDENA replied that “since the creation of military prisons there have been no ‘civilians’ held or detained in them, but only military personnel who breach military discipline.”²²⁴

What makes these denials especially remarkable is the fact that they brazenly contradict what is already public information. In its 2001 report, the CNDH announced that it had been able to verify “the existence of installations run by members of the aforementioned ‘Special Brigade or White Brigade’ inside Military Base Number One.”²²⁵ The CNDH report also cited at least eleven documents from the 1970s, most from the Federal Security Directorate, that revealed that civilians had indeed been held at Military Base Number One. Similarly, a widely publicized book by Julio Scherer and Carlos Monsiváis cites a DFS report from the day of the Tlatelolco massacre that lists the names of over three hundred civilians held at Military Base Number One.²²⁶ This documentation, moreover, was corroborated by numerous firsthand accounts from civilians who reported having been held at the military base.

The repeated claims by SEDENA that it cannot locate information relevant to the “dirty war” cases seem highly dubious given the fact that, according to people who have done extensive research in the National Archive, the military keeps exceptionally detailed and well-organized files. It certainly may be true that locating the requested information is a time-consuming task. However, that is precisely the task that the president assigned the military in the executive order that established the Special Prosecutor’s Office.

There is one important exception to the military’s stonewalling the investigation of these crimes. In 2002, the Military Prosecutor’s Office turned over the files of the cases they were bringing against Acosta Chaparro and Quiros Hermosilla. The files contained the only available accounts by former military personnel of army participation in “dirty war” crimes—detailed, graphic, and compelling testimony regarding the extrajudicial execution of civilians at an air force base in Guerrero state, and the disposal of their bodies in the ocean.²²⁷

Yet this example of information sharing is an exception that proves the rule in several respects. First, it shows that military personnel do have compelling eyewitness testimony to provide, and are willing to provide it under certain circumstances. In this case, the first witness to provide information did so while being interviewed by prosecutors investigating drug charges against the former military officers. He was a participant in a witness protection program established for witnesses in cases involving organized crime—and he stood to benefit himself with a sentence reduction in exchange for his collaboration, an arrangement that is currently only available in cases involving organized crime. The other three former military officers who corroborated his claims did so when summoned by military prosecutors—in other words, when the military itself compelled them to do so.

The fact that the military turned over the case files is hardly evidence of active collaboration with the Special Prosecutor’s Office. The military was required by law to do so, since the files contained evidence regarding crimes that the civilian prosecutors were investigating. And, while the military appears to have flouted this obligation in other cases, in this particular case, it would have been difficult to deny that the testimony existed—at least not without doctoring the case files themselves, which could have easily been detected. Moreover, the military officers implicated by the testimony were already being prosecuted in military courts for illegal drug trafficking, and clearly out of favor with the institution. And finally, as we discuss below, there may have been little reason to fear that the Special Prosecutor’s Office would succeed in prosecuting them, as civilian courts were likely to turn the cases over to the military justice system.

In fact, even as the military turned over the case files, its prosecutors proceeded to pursue their own criminal investigation of the “disappearance” cases. In doing so, they further undermined the Special Prosecutor’s Office’s ability to gather information on the cases, heightening the climate of fear and distrust that continues to haunt the communities that bore the brunt of the “dirty war” decades ago.

As part of its own investigation, the PGJM installed an office in Atoyac de Álvarez, Guerrero—at a short distance from the office already established by the Special Prosecutor’s Office—and began calling on victims’ relatives to provide testimony about alleged “disappearances” committed by the army. Many civilians in the area who received these summons interpreted them as a form of harassment.²²⁸ The PGJM is itself apparently aware of the effect its investigations have had on victims’ relatives in Guerrero. One woman who disregarded an invitation to collaborate with the PGJM received a letter in which a PGJM official wrote that the military “understands the anxiety that the invitation to appear before a military authority may have caused you, which was probably the reason you may have decided not to make an appearance before us, given that it is precisely military personnel to whom you attribute the “disappearance” of your son.”²²⁹

Although the PGJM eventually closed its office in Atoyac de Álvarez, its presence may have had a lasting impact on the work of the Special Prosecutor’s Office there, feeding the climate of distrust toward the government that exists within the community. According to one official in the Special Prosecutor’s Office, the families cited by the PGJM believed that the Special Prosecutor’s Office had given their names to their military counterparts, thereby violating their rules of confidentiality.²³⁰ According to another official, the presence of the PGJM near that of the special prosecutor may have created the impression that the civilian authorities were working in tandem with the military ones, thereby compromising their credibility with victims’ relatives. This perception, the official complained, was only exacerbated when several PGJM officials installed themselves in the Special Prosecutor’s Office one day to solicit testimony from family members who arrived there.²³¹

Instead of conducting its own criminal investigation, the military should have been actively supporting the work of the Special Prosecutor’s Office. The director of the special prosecutor’s documentation team, José Sotelo, estimated that, if SEDENA had collaborated actively with investigators, they would have been able to completely resolve 85 or 90 percent of the cases.²³² Instead, because the military has stonewalled, the process of solving most of these cases has only just begun.

Obstacles to Justice

Inability to detain suspects

A major obstacle to prosecuting these cases has been the state’s failure to execute the majority of the arrest warrants that the special prosecutor has obtained from judges. Since Mexican law prohibits trying people in absentia, the prosecutions cannot proceed so long as the accused remain at large.

There are currently thirteen arrest warrants against seven former officials that have not been carried out. According to the director of the AFI, the agency that is responsible for executing these warrants, the poor outcomes result from the fact that the people at large have extensive ties with people within the political system and law enforcement institutions who make it possible for them to elude capture. For example, Luis de la Barreda Moreno, a former director of the DFS, has been able to elude capture for over two years because he is “part of the Mexican political system and has the support of the political class.”²³³

In the case of Isidro Galeana, a former judicial police commander in Guerrero state who was charged by the Special Prosecutor’s Office in 2003 with the “disappearance” of Jacobo Nájera Hernandez, Human Rights Watch received eyewitness reports from other law enforcement agents that he was protected by members of the local police, who were serving as his bodyguards when they should have been arresting him. Galeana was able to remain at large for almost two months until his death, by natural causes, in January 2004.

While it may indeed be more difficult to carry out arrest warrants of former officials who still have strong ties with local and national law enforcement agencies, it should not be impossible. Mexican law enforcement agencies have repeatedly proven their effectiveness in recent years by arresting some of the country’s most powerful and violent drug traffickers.

Legal Hurdles

Another major challenge for the Special Prosecutor’s Office has been how to develop legal strategies that could overcome two basic legal hurdles—how to prosecute old crimes that might be subject to statutes of limitation, and how to apply Mexican criminal law to egregious human rights violations that were not adequately contemplated in the penal code at the time they were committed. The strategies the special prosecutor has pursued have shown very mixed results.

The “Genocide” Cases

The special prosecutor’s legal strategy in the two most emblematic cases—the massacres of student protestors in 1968 and 1971—has clearly not worked. In both cases, he argued that the crime committed had been “genocide,” and that genocide was not subject to a statute of limitations. The courts have not accepted either argument.

In the first case the special prosecutor pursued—the 1971 massacre—the Supreme Court upheld a lower court’s ruling that genocide is in fact subject to a thirty-year statute of limitations. But the court did accept an argument presented by the special prosecutor that two of the accused, Luis Echeverría Álvarez and Mario Augusto José Moya y Palencia, could still be prosecuted since the clock on the statute of limitations had been suspended during the years their official posts had imbued them with immunity from prosecution. The Supreme Court sent the case against these two back to the trial court to determine whether the charges were sufficiently substantiated to proceed to trial.²³⁴ A month later, the trial judge ruled that the alleged crime did not constitute “genocide,” but instead was a case of “simple homicide”—a crime for which the statute of limitations had expired, even for Echeverria and Moya y Palencia. The 1968 case, meanwhile, has suffered a similar fate. The trial court found that the period established by the statute of limitations has passed. And while the special prosecutor appealed the ruling, there is no reason to think this appeal will fare better than the other.

Under international law norms, the obstacle to prosecution of these cases should not have been the statute of limitations since, under international law, genocide is not subject to one. The problem, from the standpoint of international human rights law, is that the crime in question did not constitute “genocide.”

According to the Genocide Convention, an essential element of the crime is that the perpetrators act with the “intent to destroy, in whole or in part, a national, ethnic, racial or religious group, as such.” This definition was intentionally constructed to exclude cases where the target is a political group, such as the groups of student activists targeted in the 1968 and 1971 massacres. Nevertheless, the special prosecutor attempted to argue that the victims of the massacre constitute a “national group” because they were a group of Mexican “nationals.”²³⁵ In terms of international law, this argument is farfetched. And while the special prosecutor has argued that under Mexican law it is plausible, the definition used in the Mexican penal code is essentially the same as that which is used in the international law.²³⁶ Numerous Mexican criminal lawyers have told Human Rights Watch that they were unconvinced by the special prosecutor’s interpretation. And, more to the point, the courts hearing the case have also rejected it, rendering this a moot point.

Did the special prosecutor have any better options for prosecuting these crimes? One possibility would have been to file charges for “aggravated homicide” rather than “genocide.” There is no question that the killings fit the definition of this crime. However, there is some ambiguity with regard to the calculation of the statute of limitations. According to one interpretation of the law applicable at the time of the crimes, the statute of limitations would most likely be thirty years, making it impossible to prosecute most of the accused, but allowing for prosecution of Echeverría and Moya y Palencia (using the tolling argument already endorsed by the Supreme Court). However, the federal criminal code in effect at the time of the crimes, combined with a series of non-binding Supreme Court rulings from the era, permit another interpretation of the statute of limitations that would foreclose the possibility of prosecuting even those two cases. Fearing that courts would resolve this ambiguity in favor of the defendants, the Special Prosecutor’s Office chose not to pursue this line of prosecution.

Another option would have been to argue that the killings constituted “crimes against humanity.” The concept of “crimes against humanity” in international law refers to serious acts of violence, including murder, torture, and forced disappearance, carried out in a widespread or systematic fashion against an identifiable group of persons.²³⁷ Crimes against humanity have been proscribed in several treaties ratified by Mexico and have existed in customary international law for over half a century—since well before Mexico’s “dirty war.” They are, moreover, deemed to be part of jus cogens—the highest standing in international legal norms—thereby constituting a non-derogable rule of international law.²³⁸

In addition, prosecutors might have referred specifically to Mexico’s obligation under the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity to argue that their prosecutions could not be barred by statutory limitations. Article 1 of the Convention states that statutory limitations shall not apply to crimes against humanity, “irrespective of the date of their commission.”²³⁹ Moreover, the Convention obligates Mexico to “undertake to adopt, in accordance with their respective constitutional processes, any legislative or other measures necessary to ensure that statutory or other limitations shall not apply to the prosecution and punishment of the crimes . . . and that, where they exist, such limitations shall be abolished.”²⁴⁰

When ratifying the Convention, however, Mexico included an “interpretative declaration” to the effect that it would “consider statutory limitations non-applicable only to crimes . . . committed after the entry into effect of the Convention with respect to Mexico”—i.e., after Mexico ratified the Convention in 2002. According to the declaration, Mexico’s obligation not to apply statutory limitations would not apply to the cases under investigation by the Special Prosecutor’s Office. Yet prosecutors could have pointed out that this declaration does not affect Mexico’s obligations under the Convention.²⁴¹ Instead, it represents an interpretation of those obligations that is simply wrong. It is wrong because it directly contradicts the language of Article 1 that prohibits the application of statutory limitations “irrespective of the date of their commission.”

But if the “crimes against humanity” option makes good sense from an international law perspective, it would have represented a major new development for Mexican criminal law. For Mexican courts to accept an argument of this sort, the special prosecutor would still have had to persuade them that an exceptional decision not to apply statutory limitations in these cases did not violate the prohibition on retroactive criminal laws, as established in the Constitution—since the bar on statutory limitations for crimes against humanity already existed in customary international law when the acts being prosecuted took place.²⁴² Making this case to judges who are generally unversed in international law would have been a difficult task. And it is likely that the judges would make their determination based on the misguided interpretive declaration.

In this sense, a potentially powerful legal strategy for prosecuting these cases was undercut by the Mexican government’s willingness, when ratifying the relevant international treaties, to compromise its commitment to the fundamental international norm that crimes of this nature are not subject to statutes of limitations.

The Forced Disappearance Cases

Unlike with the genocide cases, the Supreme Court has given a green light to prosecuting cases of forced disappearance that occurred decades ago. In fact, it has issued two separate rulings authorizing the prosecution of two different types of “disappearance” crimes despite the passage of time.

The first ruling came in November 2003, after the special prosecutor sought his first arrest warrant in a forced disappearance case, charging Nazar Haro and other officials with the “abduction” of Jesús Piedra Ibarra. A trial court judge refused to grant the warrant on the grounds that the statute of limitations had run out. But the special prosecutor appealed and won a ruling from the Supreme Court that held that the time allotted by the statute of limitations for abduction cases did not begin to run out so long as the victim remained missing.

The second ruling came in July 2004, when the Supreme Court ruled on a constitutional challenge presented by the government of Mexico City to the “interpretive declaration” that Mexico had added when subscribing to the Inter-American Convention on the Forced Disappearance of Persons. The Court held that the crime of forced disappearance is of a permanent and continuous nature—i.e., it does not end and continues to take place as long as the fate of the victim of forced disappearance remains unknown. As a consequence, the Supreme Court concluded that the statute of limitations only begins to run out when the victim of forced disappearance appears (dead or alive) or when this person’s fate becomes known.²⁴³

The Special Prosecutor’s Office was therefore clear to prosecute the old forced disappearance cases either as “abductions” or as forced disappearances. The special prosecutor chose the former option, reasoning that judges would reject charges of forced disappearance on the grounds that the crime was not on the books at the time the victims were abducted (and the crime of abduction was).²⁴⁴ This concern appears to have been misplaced, however, since the Supreme Court’s 2004 ruling on the issue of the statute of limitations, which created binding case-law, made clear that the crime of forced disappearance continues to be committed on a daily basis, so long as families do not know what happened to their loved ones. Even though the criminal code that was in effect in the 1970s did not include the crime of forced disappearance, the current code does include it, and it applies to the cases in which victims remain “disappeared” today.

The decision to press charges of “abduction” could create other serious problems for the prosecution. As the Mexican NGO Comisión Mexicana de Defensa y Promoción de los Derechos Humanos has pointed out in a petition pending now before the IACHR, the penal code appears to indicate that the crime can only be committed by non-state actors (particulares), or by state actors who are not acting in their official capacity.²⁴⁵ Yet in the majority of the “disappearance” cases, it appears that the perpetrators were indeed acting under color of law, carrying out a government policy, with authorization and support of the state.

Developing Viable Legal Strategies

When the Special Prosecutor’s Office was created in 2001, it was already clear that it would face enormous legal hurdles. The most obvious of these was the problem of statutes of limitations. President Fox himself recognized this early on in the process when he said, in November 2002, that it might be impossible to prosecute most of the cases because of the passage of time.²⁴⁶

Human Rights Watch explored these legal hurdles in detail in our 2003 report, Justice in Jeopardy, and concluded that, under the circumstances, the task of developing a viable legal strategy was far too ambitious and complex to leave entirely to the Special Prosecutor’s Office.²⁴⁷ Forging viable legal strategies would entail breaking new ground within a criminal justice system that was poorly equipped to deal with crimes of this nature. And it wouldn’t be enough merely to choose the legal arguments that were legally sound. Prosecutors would also need to convince judges that their novel legal arguments were consistent with Mexican law. They would need to impress upon judges the weight of Mexico’s international obligations to prosecute human rights violations. In short, prosecuting these cases would require pushing Mexican criminal law in new directions. It would require overcoming the very legal doctrine and habits that had, for decades, served to perpetuate the culture of impunity.

What was needed, we argued in the 2003 report, was a collectiveeffort by the government’s top legal experts and the country’s most experienced and influential jurists. The best way to strengthen the prosecution’s arguments would be to have them be scrutinized, refined, and publicly endorsed by the country’s most experienced and knowledgeable jurists. Ideally, when the cases went to trial, it would be clear that these legal arguments reflected not only the views of the prosecutor, but also the views of the Fox administration and the broader legal community.

To that end, we recommended that the president convene a task force or commission to examine the issue of statutory limitations and any other legal obstacles that could limit the prosecution of past abuses. This group would consist of distinguished jurists, as well as lawyers representing relevant private and state institutions, including the Foreign Affairs and Interior Ministries, the PGR, the PGJM, the CNDH and, of course, the Special Prosecutor’s Office. Its aim would be to generate greater clarity and consensus about the nature of the legal obstacles, and to assess—in light of both national and international law—the advantages and disadvantages of the various prosecution strategies that the Special Prosecutor’s Office might adopt to overcome them.

The Fox administration did not give this issue the attention it deserves nor attempt the kind of coordinated approach outlined above. Instead it chose to leave the monumental challenge of overcoming the legacy of impunity at the heart of the Mexican legal system on the shoulders of a single prosecutor and his staff. It is impossible to know whether a presidential task force of this sort would have necessarily ensured greater success in prosecuting these cases within Mexican courts. But it almost certainly could have led to greater clarity about the legal issues at stake, and helped to expose the deficiencies of the Mexican legal system that have contributed to the ongoing impunity associated with these crimes.

Military Justice

A third major obstacle to prosecution has been the Mexican military. In addition to stonewalling and interfering with investigations (as described above), the military has pursued its own prosecution of some of the “dirty war” crimes, interfering with and potentially sabotaging the work of the civilian prosecutors.

In September 2002, the PGJM indicted three military officers for their role in some of the “disappearance” cases under investigation by the special prosecutor. This indictment appeared to represent an important—if long overdue—recognition by the military of its role in past abuses. Yet in fact it was at best a grave mistake: cases like these do not belong in military courts.

International human rights bodies have repeatedly argued that military tribunals should not be relied upon to prosecute human rights abuses, and called on states to transfer jurisdiction over human rights cases from military to civilian authorities.²⁴⁸ In the case of Mexico, the U.N. Special Rapporteur on Torture found that Mexican military personnel who committed abuses were “generally protected by military justice”and concluded that “[c]ases of serious crimes committed by military personnel against civilians, in particular torture and other cruel, inhuman or degrading treatment or punishment, should, regardless of whether they took place in the course of service, be subject to civilian justice.”²⁴⁹

Despite this international consensus, Mexican military justice officials have continued to assert jurisdiction over army abuse cases. They note that the Mexican Constitution establishes military jurisdiction for “offenses against military discipline,”²⁵⁰ and rely on the fact that the Code of Military Justice provides an expansive notion of such offenses that includes “offenses under common or federal law…when committed by military personnel on active service or in connection with active service.”²⁵¹ (When ratifying the Inter-American Convention on Forced Disappearance of Persons, Mexico submitted a reservation to the treaty’s prohibition on asserting military jurisdiction over cases of forced disappearance.²⁵²)

In this particular case, however, the assertion of military jurisdiction also violates the Mexican Constitution, which holds that “military tribunals shall in no case and for no reason exercise jurisdiction over persons who do not belong to the army,” and that “[w]henever a civilian is implicated in a military crime or violation, the respective civilian authority shall deal with the case.”²⁵³ Accordingly, when both military and civilians are suspected of committing a particular crime, the case goes to civilian courts.²⁵⁴ In the “dirty war” cases it is prosecuting, the PGJM has recognized the participation of civilians in the commission of the crimes, yet it has persisted with the prosecutions.²⁵⁵

But several factors raise questions about the seriousness of this commitment. One is the timing: after three decades of inaction, the PGJM chose to prosecute these crimes only after the Special Prosecutor’s Office began investigating them. Another is the indictment itself: it originally charged the defendants with the deaths of 143 people, but it turned out that as many as seven of the named victims are in fact alive today.²⁵⁶ A third is the fact that the indicted generals were already in jail facing drug charges. A fourth factor, mentioned above, is the fact that by asserting jurisdiction over the case, the PGJM was violating the Mexican Constitution.

Whether or not the PGJM is serious about prosecuting these cases, its assertion of jurisdiction presents serious obstacles to the Special Prosecutor’s Office. In addition to the impact, described above, that the military investigations have on the Special Prosecutor’s Office in Guerrero, there is a serious risk that, should military trials end in acquittals, the prosecution of these officers by the Special Prosecutor’s Office would be precluded under the principle of non bis in idem—the principle, known as “double jeopardy” in Anglo-American jurisdictions, according to which a person cannot be tried twice for the same crime.

The likelihood of such an outcome is increased by the fact that very few of the relatives and surviving victims in Guerrero have been willing to testify before the PGJM, thus denying it of evidence that may be necessary to obtain convictions. The main reason for their refusal appears to have been the fear described above. Several Atoyac residents told Human Rights Watch that they disregarded the request for testimony from the PGJM because they were scared of the army,and the one person Human Rights Watch spoke with who had provided testimony confirmed that most victims’ relatives she knew were too scared to do so.²⁵⁷ Another woman who refused to testify explained that she could not believe that the military had any intention of conducting a serious investigation. “They ignored us back then,” she said, “why would it be different now?”²⁵⁸ One man who reported having been tortured by soldiers—who also forcibly “disappeared” his son—said he would never go to the PGJM since it was the military that had harmed him.²⁵⁹ Another woman asked rhetorically, “How am I going to go to the PGJM when I’m denouncing an army general?”²⁶⁰

Unfortunately, it is not merely the military prosecutors and judges who insist that these cases be tried within the military justice system. Their position is shared by some civilian judges as well, as was made clear last year in one of the most prominent forced disappearance cases from Guerrero state.

In August 2005, the special prosecutor filed charges against Gen. Francisco Quirós Hermosillo, accusing him of being responsible for the “disappearance” of Rosendo Radilla. The judge issued an arrest warrant, but then turned the case over to the military justice system, arguing Quirós Hermosillo should be tried in a military court since he was being prosecuted for an act that he had allegedly committed while on duty. Despite two appeals by the Special Prosecutor’s Office, the case was sent to military courts.²⁶¹ The military judge that received the case actually sought to return it to civilian jurisdiction, arguing that he did not have jurisdiction to evaluate the former general for these acts.²⁶² But a federal civilian court ruled once again that the case did in fact belong within the military justice system.²⁶³

Given that military officers are implicated in many, if not most, of the forced disappearance cases, the precedent that has been set here is likely to have profoundly negative ramifications for Mexico’s efforts to establish accountability for past abuses. The country will be once again leaving the task of justice in the hands of the institution that carried out the crimes in the first place. It will, in other words, be perpetuating the old system in which those involved in public security are not bound by the rule of law.

Shortcomings of the Special Prosecutor’s Office

The Special Prosecutor’s Office was seriously understaffed and under-funded during the first year and a half of its operation. The chief problem at the outset was shortage of personnel. The office operated with thirty-five prosecutors during its first years—not enough, according to officials within the Special Prosecutor’s Office, to cover the heavy load of difficult cases. In addition to the shortage of staff, the Special Prosecutor’s Office had been plagued by a lack of material resources. One veteran prosecutor told Human Rights Watch at the time that in his fifteen years working with the PGR, he had never seen such a lack of resources.²⁶⁴

During the second year of operation, the number of prosecutors assigned to the Special Prosecutor’s Office was increased to fifty-seven, and in the following months the special prosecutor and his staff reported an increase in resources. In January 2006, the directors of each prosecutorial team told Human Rights Watch that they had adequate staff and resources to carry out their work.

Yet the lack of resources remained acute in one area: the documentation team. During the first year and a half of operation, the research team consisted of only five members. The director of the team at the time told Human Rights Watch that, with this number, it was virtually impossible to do a “thorough and irrefutable job.”²⁶⁵

The staff of the documentation center has since grown. In January 2006, it included twenty-five people. Yet the director of the area, José Sotelo, reported that their salaries were too small to attract experienced researchers. Moreover, it was difficult to retain people because of the failure of the PGR to pay them on a regular basis. Due to administrative mismanagement, the researchers were forced to go many months without being paid for their work. Many were hired over the course of 2004. They were not paid until April 2005 for their work in 2004, and not paid for the work completed during the first half of 2005 until September of that year. At this writing, they still had not been paid for the work done since July 2005.

In addition to working without pay, the researchers were forced to work without basic resources. According to Sotelo, they also had no operating budget and frequently had to pay their operating expenses (including costly travel) out of their own pockets. “The conditions weren’t there for doing this work,” Sotelo told Human Rights Watch. “The obstacles made it almost impossible.”²⁶⁶

The documentation team’s efforts might have benefited from the active participation of the Special Prosecutor’s Support Committee. Indeed, when President Fox announced the creation of the office in 2001, it appeared that this committee would serve at least part of the function of a truth commission—by involving prominent citizens in the efforts to investigate and document the past abuses. Yet the special prosecutor chose not to engage the committee in this way. And, as a result, it has played only a secondary role in the process to date.

Recommendations

Months before creating the Special Prosecutor's Office, the Fox administration insisted that it would not pursue any initiative to address past abuses that might undermine the existing institutions of the justice sector. But, by allowing the special prosecutor to falter, the government has merely helped to perpetuate the underlying problem that created the need for a special initiative in the first place: the failure of those institutions to assume their responsibility for promoting accountability in human rights cases. If the work begun by the Special Prosecutor’s Office is never completed, the initiative will ultimately serve to reaffirm the worst practices of a justice system that allowed the most serious human rights violations to go unpunished for decades.

Such an outcome is still, by no means, inevitable. The work of the Special Prosecutor’s Office can be salvaged. But it will require taking aggressive measures to overcome the obstacles to accountability identified in this chapter.

1) End military obstruction

The one state institution that has the most to contribute to the investigation and prosecution of these crimes is the Defense Ministry. But, instead, it has chosen not to collaborate in a meaningful fashion, thereby defying the presidential order that established the Special Prosecutor’s Office and violating its obligation to Mexican society to uphold the rule of law.

This open defiance of the civilian government represents one of the starkest examples of Mexico’s ongoing failure to establish democratic accountability. Ending it, therefore, is crucial not only to promote accountability for past atrocities, but also to advance the country’s transition to democracy.

Toward that end, the civilian government must order the minister of defense to take steps to ensure that the PGJM provides full support to the prosecutors handling cases of past atrocities. Specifically, the defense minister should order the PGJM to do all it can to locate documents and information requested by prosecutors investigating human rights cases. The PGJM should also cede jurisdiction over cases involving egregious human rights abuses to civilian prosecutors.

2) Expand Tools Available to Prosecutors

The Special Prosecutor’s Office has had almost no success in obtaining useful information from current and former security forces. It is not surprising that these officials refuse to collaborate: they have little to gain and potentially much to lose by doing so. And, so long as prosecutors are unable to offer meaningful incentives for collaboration, it is unlikely they will ever break this wall of silence.

A second critical step to ensuring successful prosecutions of these cases is to grant prosecutors the power to provide incentives to potential witnesses. This could take the form of a new law that would allow prosecutors to offer reductions in jail sentences to individuals who provide information about the human rights crimes under investigation. Such authority is available to and regularly employed by prosecutors in the United States (in the form of “plea bargaining”) and recently has proved effective in Peru, where it was granted to the special prosecutor charged with investigating abuses committed under the regime of Alberto Fujimori.

Another measure that could increase prosecutors’ investigative powers is to grant them the possibility of offering monetary rewards to individuals who provide information that helps to determine the fate of the people “disappeared” during the “dirty war.” Rewards should also be made available to individuals who provide information that leads to the capture of suspects for whom arrest warrants are outstanding. To complement these incentives for witnesses and suspects to testify, prosecutors must be able to offer a “witness protection” program to ensure the safety of individuals that decide to collaborate with the investigations.²⁶⁷

The law would have to be designed with great care to prevent abuses—by either suspects or prosecutors. It would not be applicable to people who bear major responsibility for human rights violations, but rather to minor offenders who played a small role in crimes conceived by others. The law would also need to clearly establish the obligation of every person and government agency that holds valuable documentation to share with prosecutors documents that could serve as evidence in trial.

3) Create a Truth Commission

A final crucial step for reinforcing efforts to prosecute these cases is to establish a truth commission that has the resources, expertise, and independence necessary to advance the investigation that the Special Prosecutor’s Office has begun.

There are several reasons for why creating an independent truth commission makes good sense today. The first is the difficulty of the research. Given the enormous amount of information in the National Archive, and the difficulty of sifting through it, the job requires a team of top-notch researchers, with the necessary resources, experience, and expertise.

A second reason for a truth commission is that much of the most valuable documentation includes material that is likely to be restricted to ordinary researchers on the grounds that it contains “personal data.” Indeed much of this information should be restricted, such as the reports on declarations made under torture, which involve allegations, true and false, about neighbors and friends. According the director of the special prosecutor’s documentation team, the material is explosive and needs to be handled with utmost care. A truth commission would provide the institutional and legal framework in which expert researchers could gain unlimited access to this material without violating the privacy rights of individuals.

A third reason has to do with credibility. Several journalists who worked extensively on these issues have told Human Rights Watch that they believe that there are former military and other officials who might be willing to turn over information in their possession (such as files from personal archives), but only if they believed the recipients would first, respect their confidentiality; and second, put the information to good use. In other words, they would be willing to assume the risks of helping Mexico clarify these crimes if they could lessen that risk and believed the risk was not undertaken in vain. In short, they would be more likely to turn over information to an investigative body if they believed that the investigation were going to lead somewhere.

A truth commission will only be worthwhile, however, if it is done right. It must be an independent, non-partisan body, made up of knowledgeable and prestigious members. It must also be allocated the resources necessary to conduct thorough and fair investigations. It must be required to operate with full transparency. And it must be granted the legal authority to obtain documents and cooperation from other government institutions. Anything short of this will produce a commission that lacks the credibility needed to carry out its tasks effectively.

Most importantly, the truth commission should not be conceived of as a substitute for prosecutions. Its aim should be to complement and strengthen the work of the prosecutors handling these cases. Specifically, when it obtains incriminating evidence, it should transfer it directly to the pertinent judicial authorities.

If President Fox or his successor offers Mexico a truth commission as a consolation prize—and gives it the same half-hearted support that the Special Prosecutor’s Office has received—then Mexico will merely end up with two failures instead of one.

[171] Portions of this chapter were originally published in Human Rights Watch, “Justice in Jeopardy: Why Mexico’s First Real Effort to Address Past Abuses Risks Becoming its Latest Failure,” A Human Rights Watch Report, vol. 15, no. 4 (B), July 2003.

[172] Human Rights Watch interview with torture victim, Atoyac de Álvarez, Guerrero, May 24, 2003. Many of the people interviewed, including victims, victims’ relatives and officials within the Special Prosecutor´s Office, preferred to speak on the condition that their identities would not be revealed.

[173] Human Rights Watch interview with Amalia Olivares, Mexico City, May 26, 2003. Photograph of Olivares’ legs showing holes produced by nails appeared in Darío Fritz, “La ejecución de Sebas,” Milenio, October 7, 2002, p. 38.

[174] Testimony from eyewitnesses in Military Prosecutor’s Office (Procuraduría General de Justicia Militar, PGJM) document, “Averiguación Previa SC/034/2000/IV-E-BIS.”

[175] Human Rights Watch interview with torture victim, Atoyac de Álvarez, Guerrero, May 24, 2003.

[176] Human Rights Watch interview with torture victim, Atoyac de Álvarez, Guerrero, May 24, 2003.

[177] Human Rights Watch interview with victim’s relative, Atoyac de Álvarez, Guerrero, May 24, 2003.

[178] Human Rights Watch interview with Elezar Peralta, Atoyac de Álvarez, Guerrero, May 25, 2003.

[179] Untitled document from Attorney General’s Office, March 23, 1979.

[180] Letter from Alejandrina Santiago to attorney general, March 23, 1979.

[181] National Human Rights Commission (Comisión Nacional de Derechos Humanos, CNDH) document “EXP. CNDH/PDS/95/GRO/S00237.000, Case of Mr. Peralta Santiago Lucio.”

[182] Human Rights Watch interview with Tita Radilla Martínez, Atoyac de Álvarez, Guerrero, March 24, 2003.

[183] International Covenant on Civil and Political Rights (ICCPR), ratified by Mexico on March 23, 1981; American Convention on Human Rights, ratified by Mexico on March 24, 1981; Convention against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, ratified by Mexico on January 23, 1986; Inter-American Convention to Prevent and Punish Torture, ratified by Mexico on June 22, 1987; Inter-American Convention on Forced Disappearance of Persons, ratified by Mexico on April 9, 2002.

[184] The Inter-American Court of Human Rights, for example, has held that “the State has the obligation to use all the legal means at its disposal to combat [impunity], since impunity fosters chronic recidivism of human rights violations, and total defenselessness of victims and their relatives.” Inter-American Court, Paniagua Morales et al., Judgment of March 8, 1998, para. 173.

[185] Article 25 of the American Convention on Human Rights. Similarly, the Inter-American Convention to Prevent and Punish Torture requires states to “take effective measures to prevent and punish torture” and “other cruel, inhuman, or degrading treatment or punishment within their jurisdiction” (Article 6). It also requires states parties to guarantee that “any person making an accusation of having been subjected to torture within their jurisdiction shall have the right to an impartial examination of his case,” and that “their respective authorities will proceed properly and immediately to conduct an investigation into the case and to initiate, whenever appropriate, the corresponding criminal process” (Article 8). Also, the ICCPR established the right of individuals to effective judicial recourse against human rights violations (Article 2(3)).

[186] Inter-American Court, Velásquez Rodríguez Case, Judgment of July 29, 1988, paras. 166, 174, 176. See also Inter-American Court, Loayza Tamayo Case, Judgment of November 27, 1998, para. 169.

[187] “Areas in which steps need to be taken towards full observance of the human rights set forth in the American Declaration of the Rights and Duties of Man and the American Convention on Human Rights,” Annual Report of the IACHR 1985-86, OEA/Ser. L/V./ II.68, Doc. 8, rev. 1, September 26, 1986, ch. V, p. 205.

[188] The U.N. Human Rights Committee articulated this principle in the case Quinteros v. Uruguay, concluding that the mother of a “disappeared” person was entitled to compensation as a victim for the suffering caused by the failure of the state to provide her with information. Case No. 107/1981. “The Committee understands the anguish and stress caused to the mother by the disappearance of her daughter and by the continuing uncertainty concerning her fate and whereabouts. The author has the right to know what has happened to her daughter. In these respects, she too is a victim of the violations of the Covenant suffered by her daughter in particular, of article 7.”

[189] See Diane Orentlicher, "Settling Accounts: The Duty to Prosecute Human Rights Violations of a Prior Regime" in Yale Law Journal No. 100, 1990; Naomi Roht-Arriaza (comment), "State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law", California Law Review No. 78, 1990; and José Zalaquett, "Confronting Human Rights Violations Committed by Former Governments: Principles Applicable and Political Constraints" in State Crimes: Punishment or Pardon, Aspen Institute Justice and Society Program, New York, 1989.

[190] The Court has held that parents have a right to obtain reparationfor suffering inflicted upon them by the forced disappearance of a child. This obligation is not satisfied with the offer to pay monetary damages. It must also include ending the state of uncertainty and ignorance regarding the fate and whereabouts of the “disappeared” persons. Inter-American Court, Aloeboetoe Case , Reparations (Article 63.1 American Convention on Human Rights), Judgment of September 10, 1993, para. 76.

[191] Inter-American Court, Velasquez Rodriguez Case, Judgment of July 29, 1988, para. 181.

[192] IACHR, 1995 Annual Report, Report Nº 10/95 (Case 10.580. Manuel Stalin Bolaños Quiñonez), Ecuador, para. 48.

[193] IACHR, 2000 Annual Report, Report Nº 53/01 (Case 11.565. Ana, Beatríz y Celia González Pérez), Mexico, para. 81, citing IACHR, 1995 Annual Report, Report Nº 10/95 (Case 10.580. Manuel Stalin Bolaños Quiñonez), Ecuador, para. 48.

[194] CNDH, “Informe Especial Sobre las Quejas en Materia de Desapariciones Forzadas Ocurridas en la Década de los 70 y Principios de los 80.”

[195] “Acuerdo por el que se disponen diversas medidas para la procuración de justicia por delitos cometidos contra personas vinculadas con movimientos sociales y políticos del pasado.” Order of the President of the Republic, Mexico, November 27, 2001. The official name of the office is Special Prosecutor’s Office for social and political movements of the past (Fiscalía Especial para movimientos sociales y políticos del pasado).

[196] In January 2002, the Mexican Supreme Court ruled that Attorney General’s Office erred when it chose not to investigate the 1968 Tlatelolco massacre because the period allotted by the statute of limitations had run. The court ruled that even though the alleged crimes took place more than thirty years earlier, the issue of statutory limitation should be addressed only after an investigation was carried out. “Resolución dictada en el amparo en revisión 968/99 de la Suprema Corte de Justicia de la Nación relacionada con los hechos de 1968.”

[197] Mexican non-governmental organizations have also provided detailed critiques of the work of the Special Prosecutor’s Office on several occasions. (See for instance, “Los delitos del pasado, el accesso a la justicia y la verdad: una cuenta pendiente del Estado mexicano,” a report presented to the Inter-American Commission on Human Rights by the Fundación Diego Lucero, Centro de Derechos Humanos Miguel Agustín Pro Juárez, Comité de Madres de Presos Políticos y Desaparecidos de Chihuahua, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, y la Asociación de Familiares de Detenidos, Desaparecidos y Víctimas de Violaciones a los Derechos Humanos, March 2005.)

[198] All cases are at the first stage of the procedure before the judge (instrucción). After this stage ends, the defense counsel and prosecutor must argue their conclusions before the judge.

[199] The case 62/2003 is pending before the Juzgado Cuarto de Distrito de Nuevo León and relates to the illegal detention of Jesús Piedra Ibarra. The case 11/2004 relates to the illegal detention of Ignacio Arturo Salas Obregón and was added to this case.

[200] Article 55 of the Federal Criminal Code of Mexico.

[201] The case 62/2003 is pending before the Juzgado Cuarto de Distrito de Nuevo León and relates to the illegal detention of Jesús Piedra Ibarra.

[202] The case 104/2004 is pending before the Juzgado Cuarto de Distrito de Nuevo León and relates to the illegal detention of Jesús Piedra Ibarra.

[203] The case 77/2004 is pending before the Juzgado Segundo de Distrito en el Estado de Guerrero, and relates to the illegal detention of Bernardo Reyes Félix.

[204] Human Rights Watch telephone interview with José Sotelo, director of the historical documentation team of the Special Prosecutor's Office, Mexico City, March 9, 2006.

[205] Human Rights Watch interview with Mario Ramirez Salas, Mexico City, January 18, 2006.

[206] When asked why more have not been sought out for interviews, the prosecutor in charge of the forced disappearance cases explained that, under Mexican law, prosecutors need to have compelling reason to seek such interviews—and if they summon potential witnesses without having it, they can be charged with prosecutorial harassment. Human Rights Watch interview with Juan Carlos Sánchez Ponton, Mexico City, January 18, 2006.

[207] Human Rights Watch interview with official in the Special Prosecutor’s Office, Mexico City, May 28, 2003.

[208] Human Rights Watch interviews with relatives of “forced disappearance” victims, Guerrero, May 2003.

[209] Human Rights Watch interview with the Federal Investigative Agency (Agencia Federal de Investigación, AFI) agent, Acapulco, Guerrero, May 24, 2003.

[210] Human Rights Watch telephone interview with Patricia Bernardi, EAAF, Buenos Aires, Argentina, March 14, 2006.

The EAAF reached this conclusion after evaluating the case files of the Special Prosecutor’s Office and visiting four locations in Sinaloa and Guerrero.

[211] Human Rights Watch interview with officials in the Special Prosecutor’s Office, January 18, 2006.

[212] The first gallery of the National Archive contains documents of the DFS, and the second gallery contains documents of the IPS. The second gallery includes documents from various offices that depended from the Interior Ministry, including DFS and SEDENA.

[213] Human Rights Watch telephone interview with José Sotelo, Mexico City, March 9, 2006.

[214] Jacinto R. Murguía, “La ceremonia del 2 de octubre de 1969: Los inexistentes muertos del Batallón Olimpia,” La Revista, September 27, 2004, pp. 14-19.

[215] Human Rights Watch interview with Juan Manuel Ruiz Jimenez, January 18, 2006.

[216] President Fox instructed the Minister of Defense to have the PGJM provide prosecutors with information needed for their investigations. Order of the President of the Republic, Mexico, November 27, 2001, Chapter 1 , Article 3.

[217] Human Rights Watch interview with José Sotelo, director of the historical documentation team of the Special Prosecutor's Office, Mexico City, March 9, 2006.

[218] Letter from the PGJM to the special prosecutor, March 2003 (“no se encontró información relacionada con los hechos que se citan”).

[219] Letter from the PGJM to the special prosecutor, February 2003 (“Es necesario que precise los nombres de los Generales y Jefes a que se refiere, en virtud de que por las constantes altas y bajas de personal en un Batallón y por el tiempo transcurrido desde 1974, no es factible proporcionar la documentación que obra en los archivos en los términos requeridos”).

[220] Letter from the PGJM to the special prosecutor, March 2003.

[221] Letter from the PGJM to the Special Prosecutor’s Office, August 6, 2003. (“[Después de] una búsqueda minuciosa en los archivos correspondientes, no se encontraron antecedentes de que la persona haya ingresado a alguna prisión militar.”)

[222] Jorge Alejandro Medellín y Juan Cervantes, “La Brigada Blanca no atañe a la SDN: Vega,” El Universal, February 25, 2004.

[223] Human Rights Watch interview with officials in the Special Prosecutor’s Office, Mexico City, January 18, 2006.

[224] Federal Institute for Access to Official Information, file 901/04, November 4, 2004, p. 2 (“…desde la creación de las prisiones militares no se ha recluido o detenido en ellas a ‘personas civiles’, sino únicamente a personal militar que infringe la disciplina militar.”)

[225] CNDH, “Informe Especial Sobre las Quejas en Materia de Desapariciones Forzadas Ocurridas en la Década de los 70 y Principios de los 80”(la existencia de instalaciones a cargo de los miembros de la mencionada ‘Brigada Especial o Brigada Blanca’ dentro del Campo Militar Número Uno.)

[226] The DFS report states: “Con relación a los acontecimientos suscitados en la Plaza de las Tres Culturas, de la Unidad Santiago Tlatelolco, en esta ciudad, hoy por la tarde fueron detenidos 1,043 (un mil cuarenta y tres) personas, las cuales se encuentran como sigue: 363 (trescientos sesenta y tres) en el Campo Militar No. 1.” Julio Scherer Garcíaand Carlos Monsiváis, Los Patriotas. De Tlatelolco a la guera sucia, (México: Nuevo Siglo Aguilar, 2004), pp. 15-16. Document confirmed by researcher within the Special Prosecutor’s Office. (And corroborated by another document in the National Archive, a report by then Attorney General Julio Sánchez Vargas, which included testimony by General Crisóforo Mazón Pineda, who commanded the military operation in the plaza where the massacre took place, in which he affirmed that 1,500 people had been detained and transferred to the Campo Militar Número Uno. National Archive, Interior Ministry documents in the second gallery, volume 1866.)

[227] Testimony from eyewitnesses in PGJM document, “Averiguación Previa SC/034/2000/IV-E-BIS.”

[228] Human Rights Watch interviews with victims’ relatives, Atoyac de Álvarez, Guerrero, May 24-25, 2003.

[229] Letter from PGJM to victim’s relative, Atoyac de Álvarez, Guerrero, February 2003.

[230] Human Rights Watch interview with official in the Special Prosecutor’s Office, Mexico City, May 29, 2003.

[231] Human Rights Watch interview with official in the Special Prosecutor’s Office, Atoyac de Álvarez, Guerrero, May 24, 2003.

[232] Human Rights Watch interview with José Sotelo, director of the historical documentation team of the Special Prosecutor's Office, Mexico City, March 9, 2006.

[233] Human Rights Watch interview with Genaro García Luna, Director of AFI, Mexico City, November 14, 2005.

[234] When appealing, the Special Prosecutor’s Office presented four arguments. The first three were rejected by the Supreme Court, and the fourth was considered valid. The four arguments (in italics) and the Supreme Court’s conclusions are as follows:

a) According to international law, no statute of limitations should apply to the crime of genocide.

The Supreme Court held that Article 14 of the Mexican Constitution establishes the principle of non-retroactivity of criminal law, which applies also to international treaties. Mexico ratified the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes Against Humanity and included an interpretative declaration according to which the Convention only applies after it was ratified (2002). Even if this declaration were considered a reservation, which may never contradict the object and purpose of the treaty, the Supreme Court concluded that this only matters at the international level since not applying the reservation internally would, in this case, mean not applying the Mexican Constitution, which is unacceptable.

b) According to Mexican procedural law, the term of the statute of limitations applicable to the crime of genocide was interrupted in this case by investigative procedures that took place between 1971 and 2004.

The Supreme Court considered that, according to Mexican criminal procedure law, not every investigation that takes place counts as an act that may interrupt the term of the statute of limitations. Only those acts performed by the Prosecutor’s office or Judge that aim at solving the crime or determining who was responsible for committing the crime may interrupt the term of the statute of limitations. The Supreme Court concluded that the investigative acts mentioned in the appeal did not validly interrupt the term of the statute of limitations.

c) The judicial officials in the city government, which should have investigated and prosecuted the case, were unable to do so properly. The case was against a former Mexican president, and the situation in the country (basically, city government officials did not have enough independence and autonomy from the federal government) made such investigation and prosecution practically impossible.

The Supreme Court argued that the judicial system in Mexico was based on the Mexican Constitution (basically, Articles 21 and 102) and, as such, it could not violate any of the constitutionally prescribed guarantees of due process. According to the Court, former President Echeverría directly controlled the federal and city Prosecutors’ offices because it was constitutionally prescribed. The Court held that there were no convincing arguments by the Special Prosecutor’s Office to sustain that the observance of the entire constitutional order was interrupted during Echeverría’s presidency.

d) The term of the statute of limitations should not begin during the period that Luis Echeverría Álvarez and Mario Augusto José Moya y Palencia held office since during that time they could not be prosecuted for the acts of 1971.

The Court considered that until December 1, 1976, when Echeverría and Moya y Palencia left office, the federal Prosecutor’s office was unable to initiate a criminal prosecution against them for the acts of 1971. The Court concluded that the term of the statute of limitations had not expired in these two cases only (it did for the rest of the accused).

Appeal file number 1/2004-PS that derived from the Supreme Court’s power to attract (8/2004-PSf), June 15, 2005.

[235] The special prosecutor has argued that Mexican courts have made this argument in the decision to extradite Ricardo Cavallo, an Argentine military official accused of human rights violations in Argentina in the late 1970s. On August 25, 2000, a Spanish court (Juzgado de Instrucción # 5 de la Audiencia Nacional de Madrid) requested Cavallo’s preventive detention in order to extradite him to Spain. The extradition request was for Cavallo’s responsibility for genocide, torture, and terrorism that took place in Argentina during the “dirty war” period (1976-1983). But, while the Supreme Court authorized the extradition, it did not address the substantive issue of whether genocide could be committed against a political group.

The Mexican judge that received and evaluated the extradition request did not directly address the issue of whether a political group may be a victim of genocide. The judge argued that he was only required to evaluate whether the Spanish extradition request was done in accordance to the bilateral extradition treaty between Mexico and Spain (Tratado de Extradición y Asistencia Mutua en Materia Penal entre los Estados Unidos Mexicanos y el Reino de España.) In fact, he considered that he was legally unable to evaluate the merits of the crimes for which Cavallo was being extradited (i.e., whether the elements that constitute the crime had been proven, and whether or not the accused was responsible). In order to establish that the alleged facts constituted prima facie genocide, the judge simply transcribed the arguments presented by the Spanish judge in the extradition request. In a brief paragraph, the Mexican judge concludes that the Spanish government has fulfilled the requirements of the bilateral extradition treaty since it has “included a detailed analysis of the illegal facts, including when and where they happened, and its legal analysis.” (Decision on extradition 5/2000 by Judge Guadalupe Luna Altamirano, 6^th district judge of Mexico City in federal criminal cases, January 11, 2001.)

After Cavallo presented an appeal, the Mexican Supreme Court confirmed the extradition. Cavallo argued that the Convention on the Prevention and Punishment of the Crime of Genocide violated the Mexican Constitution because it allows the extradition of political crimes. According to Cavallo, genocide may be considered a political crime, and as such, may not be subject to extradition. In its decision, the Supreme Court does not address whether genocide may be committed against a political group, but rather evaluates if the crime of genocide may be of political nature. The Supreme Court held that Mexico had adopted an objective theory to determine which crimes ought to be considered political; i.e., it takes into account what is being protected, and not the intention of the author of the crime. A crime is considered political if it is committed against the state, and therefore the crime of genocide does not have a political nature. The Supreme Court established that the crime of genocide was created to protect certain human groups considered stable, which constitute the area in which the individual members of the group develop themselves, in such a way that it is comparable to a state. (Mexican Supreme Court, decision in appeal 140/2002, June 10, 2003, [online] http://www.scjn.gob.mx/Asuntos/2003/CAVALLOENGROSE(X)2.pdf (retrieved April 2006).)

[236] According to Article 149 BIS of the Mexican Criminal Code, “The crime of genocide will be committed by the person that, with the purpose of destroying (in whole or in part) one or more national groups or of an ethnic, racial or religious character, commits, through any means, crimes against the life of members of these groups, or if [this person] imposes massive sterilization with the purpose of impeding the reproduction of the group.”

[237] According to Article 6 of the Rome Statute of the International Criminal Court, “For the purpose of this Statute, "genocide" means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”

[238] See Cherif Bassiouni, “Crimes Against Humanity,” in Roy Gutman and David Rieff, eds., Crimes of War (New York: W.W. Norton & Company, 1999), p. 107.

[239] Article 1 of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. The convention refers to war crimes and crimes against humanity, whether committed in time of war or in time of peace, as they were defined in the Charter of the International Military Tribunal, in Nuremberg, and reaffirmed by the United Nations General Assembly (in Resolution 95 (I) of 11 December 1946).

[240] Article 4 of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity. The convention’s preamble explains the rationale for this provision, stating that “the application to war crimes and crimes against humanity of the rules of municipal law relating to the period of limitation for ordinary crimes is a matter of serious concern to world public opinion, since it prevents the prosecution and punishment of persons responsible for those crimes,” and that “it is necessary and timely to affirm in international law, through this Convention, the principle that there is no period of limitation for war crimes and crimes against humanity, and to secure its universal application.”

[241] The United Nations Treaty Handbook (sec. 3.6.1) explains the difference between a reservation and an interpretative declaration: “A State may make a declaration about its understanding of a matter contained in or the interpretation of a particular provision in a treaty. Interpretative declarations of this kind, unlike reservations, do not purport to exclude or modify the legal effects of a treaty. The purpose of an interpretative declaration is to clarify the meaning of certain provisions or of the entire treaty.”

[242] The prosecution of crimes under international customary law is entirely compatible with international law and the treaties Mexico has ratified even if such crimes did not appear in the national statutes at the time they were committed. Art 15(2) of the ICCPR (that in its first paragraph contains the prohibition of retroactive criminal laws) states: “Nothing in this article shall prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognized by the community of nations.” Mexico did not enter any reservation to this provision of the ICCPR.

[243] Mexican Supreme Court, Tesis: P./J. 48/2004, Novena Época, Pleno, Semanario Judicial de la Federación y su Gaceta XX, July 2004, p.968.

[244] Human Rights Watch interview with Special Prosecutor’s Office staff, Mexico City, January 17, 2006.

[245] Petition by Comisión Mexicana de Defensa y Promoción de los Derechos Humanos to the Inter-American Commission of Human Rights (Caso 12.511, Rosendo Radilla Pacheco, Mexico), January 5, 2006.

[246] “Ve Fox difícil castigar a represores,” Reforma, November, 11, 2002 (“Es muy probable que una buena parte de los responsables no vayan a la cárcel, porque se han acabado los términos legales para el enjuiciamiento de esos crímenes”).

[247] Human Rights Watch interviewed ten lawyers and jurists about the legal issues facing the Special Prosecutor’s Office, Mexico City, May – June, 2003.

[248] The U.N. Human Rights Committee (HRC), which monitors states’ compliance with the ICCPR, has repeatedly called on states parties to subject military personnel alleged to have committed human rights violations to civilian jurisdiction. For example, in 1997 it urged the Colombian government to take “all necessary steps . . . to ensure that members of the armed forces and the police accused of human rights abuses are tried by independent civilian courts,” specifically recommending “that the jurisdiction of the military courts with respect to human rights violations be transferred to civilian courts.” Concluding observations of the Human Rights Committee: Colombia, U.N. Doc. CCPR/C/79/Add. 76, May 3, 1997, para. 34. The Committee has made similar recommendations to the governments of Chile and Peru, on the grounds that the “wide jurisdiction of the military courts to deal with all the cases involving prosecution of military personnel . . . contribute[s] to the impunity which such personnel enjoy against punishment for serious human rights violations.” Concluding observations of the Human Rights Committee: Chile, U.N. Doc. CCPR/C/79/Add. 104, March 30, 1999, para. 9. See also U.N. Doc. CCPR/C/79/Add. 67, July 25, 1996, para. 23. Similarly, the Inter-American Court has held that “[i]n a democratic State governed by the rule of law, the scope of authority of criminal military courts must apply on a limited and exceptional basis,” and that “[m]ilitary officers must be prosecuted for the commission of only those offenses and infractions that, because of their nature, have an adverse effect on the assets of the military.” Inter-American Court, Durand and Ugarte Case, Judgment of August 16, 2000, para. 117.

[249] United Nations, Question of the human rights of all persons subjected to any form of detention or prison and, in particular, torture and other cruel, inhuman, or degrading treatment or punishment. Report of Special Rapporteur Nigel Rodley, submitted pursuant to Resolution 1997/38 of the Commission on Human Rights, E/CN.4/1998/38/Add.2, January 14, 1998, paras. 86, 88[j].

[250] Article 13 of the Constitution of the Republic of Mexico.

[251] Article 57 of the Code of Military Justice of Mexico.

[252] Article 9 of the Inter-American Convention on Forced Disappearance of Persons stipulates that “acts constituting forced disappearance shall not be deemed to have been committed in the course of military duties.” The convention also provides that “Persons alleged to be responsible for the acts constituting the offense of forced disappearance of persons may be tried only in the competent jurisdictions of ordinary law in each state, to the exclusion of all other special jurisdictions, particularly military jurisdictions.” Mexico submitted a reservation to the latter provision, stating that “Military jurisdiction does not constitute a special jurisdiction in the sense of the Convention,” and therefore the military justice system could continue to assert jurisdiction “when a member of the armed forces commits an illicit act while on duty.”

[253] Article 13 of the Constitution of the Republic of Mexico.

[254] The Mexican Supreme Court has ruled out the possibility that the same case can be tried simultaneously under military and civilian jurisdictions: “…neither the historical background of Article 13 of the Constitution, nor the social conditions prevailing when the article was created, nor the ideas expounded by the legislators at its drafting, nor the literal meaning of the words in its text can sanction the interpretation that when in a military crime a civilian is implicated, the military authorities will judge the members of the army and the civilian authorities will judge the civilian person; and therefore, the civilian authorities are the ones who shall exercise jurisdiction in a military process where there are civilians involved.” Mexican Supreme Court, Pleno, Quinta Época, Semanario Judicial de la Federación, Tomo XL, p. 1393.

[255] In a document submitted to the Special Prosecutor’s Office, the PGJM wrote that it had detected “the participation in the criminal activities analyzed in the present document of other persons who did not have military status but did have the status of government agents…”

[256] “Acusan a generales de matar 143 civiles,” Reforma, October 29, 2002. Human Rights Watch spoke to one of the individuals listed, who had been temporarily detained by the military, in 1974, but was eventually set free. Human Rights Watch interview with Antonio Hernández, Mexico City, January 8, 2003.

[257] Human Rights Watch interview with victims’ relatives, Atoyac de Álvarez, Guerrero, May 24-25, 2003.

[258] Human Rights Watch interview with victim’s relative, Atoyac de Álvarez, Guerrero, May 24, 2003.

[259] Human Rights Watch interview with victim’s relative, Atoyac de Álvarez, Guerrero, May 24, 2003.

[260] Human Rights Watch interview with victim’s relative, Atoyac de Álvarez, Guerrero, May 24, 2003.

[261] When the Special Prosecutor’s Office appealed the decision on August 15, 2005, the same judge decided the case had already been sent to military jurisdiction. On August 19, 2005, the Special Prosecutor’s Office appealed before a higher court (Primer Tribunal Unitario de Circuito), which denied the appeal on the same grounds.

[262] The judge concluded that it did not have jurisdiction to evaluate the case because the acts did not constitute a crime committed as a consequence of his military duties, and argued that, according to Article 13 of the Code of Military Justice, military jurisdiction was restrictive.

[263] The federal court based its decision on the 2005 ruling of the Supreme Court (Mexica Supreme Court, Primera Sala, Tesis 148/2005, October 26, 2005).\

[264] Human Rights Watch interview with official in the Special Prosecutor’s Office, May 2003.

[265] Human Rights Watch interview with María de los Angeles Magdalena, Mexico City, May 28, 2003.

[266] Human Rights Watch telephone interview with José Sotelo, Mexico City, director of the historical documentation team of the Special Prosecutor's Office, March 9, 2006.

[267] Articles 35-39 (Chapter 7) of the Federal Law against Organized Crime.

In Mexico, these faculties have already been granted to prosecutors pursuing cases against organized crime, albeit with mixed results.

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May 2006