Atrocity Crimes in Mexico Demand an Extraordinary Response

NEW YORK—There is a “reasonable basis” to believe that both Mexican government forces and the Zetas drug cartel have committed crimes against humanity against civilians over the past decade, according to a new report from the Open Society Justice Initiative and five Mexican partners.

The report, Undeniable Atrocities: Confronting Crimes against Humanity in Mexico, also accuses successive governments of almost completely failing to ensure accountability for atrocity crimes, due primarily to political obstruction. It calls on Mexico to create an internationalized investigative body, based inside Mexico, with the power to prosecute both atrocity crimes and corruption.

James A. Goldston, executive director of the Open Society Justice Initiative said: “The Mexican government has demonstrated leadership on human rights issues abroad for many years. It’s now time for it to do so at home, and to address the country’s crisis of confidence in the judicial system by investigating and prosecuting atrocity crimes in Mexico. By identifying the main barriers to effective criminal justice for atrocity crimes in Mexico, this report intends to assist the Mexican state and people in overcoming them.”

Undeniable Atrocities incorporates over three years of research by the Open Society Justice Initiative and five independent Mexican human rights organizations: Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, Centro Diocesano para los Derechos Humanos Fray Juan de Larios, I(dh)eas Litigio Estratégico en Derechos Humanos, Fundación para la Justicia y el Estado Democrático de Derecho, and Ciudadanos en Apoyo a los Derechos Humanos (CADHAC).

The report’s analysis relies on legal standards of the 1998 Rome Statute, which established the International Criminal Court, and which Mexico ratified in 2005. The Rome Statute and subsequent court rulings define patterns of murder, enforced disappearances, and torture as crimes against humanity when they are carried out in pursuit of a state or organizational policy, in an attack directed against civilians, and are widespread or systematic.

Mexico’s federal government has a legitimate goal in subduing organized crime, the report notes. However, it has done so by deploying the military and federal police to use indiscriminate and extrajudicial force against civilians perceived to be associated with criminal cartels, without properly regulating the use of force, and with virtually no accountability for ensuing abuses. The thousands of deaths, disappearances, and incidents of torture carried out by government forces meet the “widespread” legal threshold, and the extent, patterns, and intensity of the crimes strongly suggest that they are also “systematic.” The crimes of the Zetas cartel, the report concludes, are similarly widespread and systematic. Crimes against humanity are not subject to amnesty, or to statutes of limitation.

The report says that due to the failure of the judicial system to properly investigate and prosecute crimes, federal officials have operated with “near complete impunity in the fight against organized crime, with few to no successful prosecutions for extrajudicial killings, enforced disappearances, or torture”:

• Despite widespread killings, limited publicly available data indicates that only a handful of federal or state security personnel have ever been prosecuted—let alone convicted—for murder before military or civilian courts. According to one set of data from the Defense Ministry, between 2007 and 2013, only 29 military investigations for killings perpetrated by members of the military were undertaken, with no resulting convictions.
• Widely cited government data on disappearances are unreliable, but there are indications that many thousands have disappeared over the past decade. Government-perpetrated enforced disappearances have sometimes been falsely recorded as “kidnappings,” and there have been roughly 580,000 kidnappings in Mexico between 2007 and the end of 2014. As of February 2015, government data points to a mere 313 federal investigations and 13 convictions proving government complicity for the crime of enforced disappearance. Although many cases of military-perpetrated enforced disappearance have been documented, it took until August 2015 for a single soldier to be convicted of the crime.
• Out of thousands of complaints of torture and ill-treatment from 2007 through 2015, official figures have recorded only six convictions for torture at a federal level.

Under international law, the primary obligation to investigate and prosecute crimes against humanity rests with Mexican authorities.

The report notes: “Seeking accountability before the ICC is an option if Mexico persistently fails to investigate and prosecute atrocity crimes. But a far better outcome is for the Mexican government to pursue domestic prosecutions itself, regardless of whether the perpetrators are government actors or criminal groups. … The ICC, located in The Hague, can never equal the advantages of proximity, breadth of inquiry, or lasting impact on the development of the rule of law that credible domestic proceedings would bring.”

The report urges the Mexican government to continue promoting significant but slow-moving reforms to the justice sector, as well as improving its technical capacity. But it concludes that “technocratic fixes will go only so far in addressing what are fundamentally political problems.”

Successive Mexican administrations have denied and minimized the extent of atrocities in Mexico, including by making often-unfounded statements that victims are themselves criminals, attacking domestic organizations and international bodies that point to the crisis, and obscuring data on atrocities, for example by failing to coordinate the mapping and exhumation of clandestine and mass graves.

Further forms of political obstruction include the continued encouragement and acceptance of torture as a means of extrajudicial punishment and means to manufacture “evidence” for investigations; sheltering the Army and Navy from proper criminal investigations; promotion of a militarized policing model that leaves police ill-structured to conduct proper investigations; and launching initiatives like the Victims’ Law and Unit Specialized in the Search for the Disappeared, only to let them fail for lack of political support. 

The report concludes: “The government must act without delay to acknowledge the gravity of the situation: it must initiate urgent, extraordinary measures, including the invitation of international assistance to ensure independent, genuine investigations and prosecutions.”

To that end, Undeniable Atrocities calls on the Mexican government to take the following specific measures:

1. Create an internationalized investigative body, based inside Mexico, with the power to:

• independently investigate atrocity crimes and cases of grand corruption and introduce cases in Mexican courts;
• provide technical assistance to the Attorney General’s Office/Fiscalía and investigative police;
• develop justice sector reform proposals for consideration by the Mexican government, Congress, and the public; and
• produce public reports on the state of justice sector reform and the rule of law in Mexico, as well as progress on criminal justice for disappearances, torture, and killings.

2. Urgently create integrated teams to investigate disappearances: Based within the office of the deputy prosecutor for human rights, these units should include prosecutors, police investigators, and social workers, and should have primacy in all investigations they open. The units should operate under the scrutiny of an oversight board made up of the attorney general, president of the National Human Rights Commission, a designee of the Congress, and civil society representatives, including victims groups.

3. Make forensic services and witness protection autonomous: Mexico’s Congress should pass legislation creating an independent national forensic institute, outside of the Attorney General’s Office and Interior Ministry, replacing forensic agencies at the federal and state levels. Congress should also pass legislation making the Witness Protection Center autonomous from the Attorney General’s Office and Federal Police.

4. Withdraw the military from public security operations and pass legislation that regulates the use of force: The president should announce a plan to withdraw the military from public security operations, in concert with police reforms that aim to strengthen community policing and police investigative capacities. 

The Open Society Justice Initiative is part of the Open Society Foundations, established by philanthropist and financier George Soros to support the development of strong and tolerant democracies whose governments are accountable to their people. The Justice Initiative has been working on criminal justice reform with partners in Mexico since 2004 and helped establish Mexico’s first pretrial services agency in the state of Morelos.