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Human Rights or Security?

Mexico’s False Dilemma

by LAURA CARLSEN

Mexico is currently confronting a human rights crisis. Headlines document the overt violence that has claimed more than 50,000 lives since December 11, 2006 when President Felipe Calderón launched the war on drugs. Yet beneath the bloodshed, the erosion of the rule of law and the systematic violation of human rights in the context of the armed conflict caused by the drug war has created a more profound crisis in Mexican society, one whose causes and effects are not only ill-defined but often purposely obscured.

The War on Drugs and National Security

The war on drugs began with the premise that drug trafficking cartels presented the gravest threat to Mexican security and would therefore be a top priority of the incoming Calderón administration. The chosen strategy was modeled on the drug war devised by U.S. President Richard Nixon in 1971 that prioritized enforcement of laws prohibiting the sale and consumption of certain drugs at home, harsh criminalization of consumers and vendors, and interdiction strategies in producing nations. In a series of “Joint Operations” between Federal Police and Armed Forces, the Mexican government has deployed more than 45,000 troops into various regions of the country in an unprecedented domestic low-intensity conflict.

This deployment has raised numerous constitutional questions. Although there are some specific circumstances in which the use of the Mexican Armed Forces is considered justified within national territory, Article 129 of the Mexican Constitution restricts the functions of the Armed Forces in peace times to those directly connected to military discipline, and Article 21 stipulates that public security is the task of civil authorities. The federal government continues to define a semi-permanent role for the Armed Forces in the drug war, which in the absence of a declared state of emergency is difficult to justify. Moreover, the domestic role of the Armed Forces threatens civil liberties and individual human rights and constitutes an affront to the rule of law.

This situation is compounded by the actions of the Armed Forces. Although trained in a war model that posits annihilation of an identifiable enemy, when deployed to communities where civilians are defined as suspected enemies, soldiers and officers have responded too often with arbitrary arrests, personal agendas and corruption, extrajudicial executions, the use of torture, and excessive use of force. The persistence of trying all cases related to military personnel in military tribunals, known as the fuero militar or military exemption from civil prosecution, inhibits legal and social accountability and in practice has led to a very low prosecution rate.

Human Rights Watch (HRW) reports that of 3,671 investigations opened in the military court system between 2007 and 2011, only 29 resulted in convictions of soldiers. In November 2009, the Inter-American Court of Human Rights (IACHR) mandated proscription of the use of military jurisdiction in cases involving human rights violations of civilians. In a historic ruling, the Mexican Supreme Court held on July 6, 2011 that the armed forces must respect the decision of the IACHR. Despite the combined mandate of both the international and national ruling, in practice citizens must file for an injunction against trial in military courts on a case-by-case basis in order to demand investigation and trial in civilian courts.

The first case to challenge military immunity won a decision by the Sixth District Court of the Second Region to an injunction against the extension of military immunity in the case on December 9, 2011. The family of Bonfilio Rubio Villegas, an indigenous Nahua man shot to death at a military checkpoint in the state of Guerrero, filed the case.Judge Carlos Alfredo Soto Morales ruled on the basis of the Constitution and cited the Radilla case, noting that rulings by the IACHR are binding under Mexican jurisprudence. After the federal court ruled that the Bonfilio Rubio Villegas case must be tried in a civil court the Army appealed the ruling, sparking protests by citizen organizations and experts that cited a continued resistance on the part of the Armed Forces to submit to civilian justice.

The National Commission on Human Rights (NCHR), HRW, and local and state human rights groups report major increases in forced disappearances, torture and extrajudicial executions, many allegedly perpetrated by Mexican security forces. There has been a 70 percent increase in complaints of human rights violations between 2010-2011 compared to the previous level, the majority of which were filed registered against security forces, especially the Federal Police and Army. The top categories are arbitrary arrest, torture, and extortion. On an official visit to Mexico, the U.N. High Commissioner of Human Rights, Navi Pillay, expressed grave concern over the militarization and expanded use of pre-trial house arrest; five U.N. bodies have recommended elimination of the practice as a violation of presumed innocence. The Mexican government has refused to reform the law or practice. The Second Report on the Situation of Human Rights Defenders in the Americas of the IACHR documented 61 murders of defenders in Mexico during the drug war period 2006-2010, and the National Network of Women Human Rights Defenders reports 17 female human rights defenders murdered from 2010 to date. Another report documents dozens of attacks on female human rights defenders, many including gender-based forms of violence.

The NCHR has registered 475 forced disappearances in September 2011, compared to some four to six cases in 2006. Especially in disappearances, cases are widely underreported. Human Rights Ombudsman Raúl Plascencia noted that the federal government does not register forced disappearances, nor are they investigated in most cases. The NCHR has begun a registry and investigations, but has not reached full coverage and the federal government approved a measure to begin a registry.

Moreover, some major violations of human rights cannot be successfully prosecuted due to gaps in the law. Neither femicide, which has risen notably during the drug war period, nor forced disappearances are typified as such under the law. Currently femicides and disappearances are registered as kidnappings or missing person reports. As a result, the kidnapping unit of the Attorney General’s Office (PGR) is overwhelmed and forced disappearances are not counted. Forced disappearances are not classified as a specific crime under Mexican federal law. Some Mexican states are thus moving to pass specific laws on forced disappearances and human rights groups in Mexico have called for a national law as well.

According to the Ministry of Defense, the Army receives an average of four human rights complaints a day as a result of its involvement in the drug war. The total number of complaints registered by the NCHR against the army since the start of the drug war under the Calderón administration is 5,055 by mid-2011; only 79 recommendations have been issued. The Ministry of Defense has attempted to minimize the gravity of this situation, stating that due to its offensive against organized crime, “there are complaints that are presented by members of organized crime to defame this armed institute and therefore limit its operations.” However, this claim has not been substantiated, and investigations of most complaints are considerably delayed or limited. There is every reason to view with alarm the number of government statements that associate complaints of human rights violations with links to drug trafficking, as they point to an attitude of tainting or criminalizing human rights defenders, which puts them in greater jeopardy.

Paradigms for Security: The National Security Law and Citizen Security

Because of the explosive increase in violence and human rights violations under the enforcement/interdiction drug war model, Mexican human rights groups and citizen organizations have demanded an immediate change in the security strategy. The Movement for Peace with Justice and Dignity (MPJD), led by the poet Javier Sicilia whose son was brutally murdered in March of 2011, has formally called for an end to Calderón’s drug war, a halt to the U.S.-funded Merida Initiative and rejection of the administration’s proposed reforms to the National Security Law. The 2005 National Security Law places national security as the priority, and defines national security in Article 3: “For the effects of this Law, national security is understood as the actions destined to immediately and directly maintain the integrity, stability and permanence of the Mexican State…”

The proposed reforms presented by President Calderón are aimed at institutionalizing the drug war model within this concept of national security and providing a stronger legal basis for the participation of the Armed Forces in the country. MPJD legal experts have criticized the 2005 National Security Law for the following reasons:

(1) It legalizes presidential decisions to attack insecurity with repressive measures that react to symptoms rather than address causes.

(2) It is unconstitutional since it redistributes public security and national security functions among the Armed Forces and the police without adequately defining both.

(3) The Armed Forces would be allowed to coordinate public safety activities when the constitution clearly only allows them to participate as auxiliaries in crisis situations.

(4) The incorporation of military personnel in public safety opens the door to substitute local and state authorities for federal Armed Forces and security personnel, which affects states’ rights and sovereignty.

(5) Federal security officials can declare states of exception, which permit authoritarian government.

(6) Military personnel could be tried in civil courts only when the military decides it is appropriate.

Experts within Mexico, including those associated with the National Autonomous University (UNAM), have been working on models of a law that would protect citizen and human security based on U.N. concepts; such models would replace the Merida-Calderón concept of “national security” that seeks to protect State interests above a priority on public safety. These models address the causes of insecurity in communities and seek long-lasting solutions to those problems, rather than proscribe repressive actions against crime. The IACHR utilizes the following definition of “citizen security”:

This group of rights includes the right to life, the right to physical integrity, the right to freedom, the right to due process and the right to the use and enjoyment of one’s property, without prejudice to other rights that will be specifically examined in the body of this report.

Citizen Actions in Defense of Human Rights and for Citizen Security

The precipitous rise in violence and human rights violations and the dysfunctional nature of the Mexican justice system have led directly to the filing and acceptance of numerous cases by international courts. The Inter-American Commission on Human Rights of the Organization of American States has received numerous Mexican cases and several have been passed up to the Inter-American Court of Human Rights, which has found against the Mexican government and issued recommendations. Many of these cases pre-date the Calderón drug war but indicate the ongoing situation of impunity that forms a backdrop for the current violence.

Mexico ratified the International Criminal Court’s Rome Statute on October 28, 2005. The ICC can accept cases if the State accused of crimes against humanity is deemed inactive, unwilling or unable to prosecute. On November 25, 2011, a case against the Calderón administration claiming crimes against humanity under the current security policy was presented with more than 23,000 signatures—a record-breaking number for the ICC. The case documents 470 instances of “crimes against humanity” including assassination, forced disappearance, torture and recruitment of minors.

The response of the Calderón government was swift, angry, and legally flawed. In a communique, the Ministry of Foreign Relations stated that “[t]he Federal Government categorically rejects that security policy can constitute an international crime.” To assert that a State security policy can never constitute a crime is unprecedented and patently ridiculous. The case is awaiting a decision on acceptance from the ICC and although unlikely to be accepted formally, proponents hope to raise the issues and perhaps have the country placed under observation, as happened in a similar case involving Colombia.

A similar effort has been undertaken before the non-binding Permanent People’s Tribunal (PPT), an international tribunal of conscience that formed as the successor to the Russell Tribunal. The PPT has agreed to form a Mexico chapter and receive documentation regarding the Mexican government’s human rights violations.

The False Dilemma

The idea that security and human rights are a trade-off is pernicious to a rights-based society. There can be no security without human rights. The Mexican government’s retort that criminals are the major violators of human rights minimizes government responsibility for ensuring a society that respects human rights and for preventing and punishing violations by state actors.

The drug war launched by the Calderón administration and supported by the U.S. Merida initiative has led to a sharp increase in human rights violations and a general climate of violence and militarization. To build respect for human rights, Mexico must reform the current security model that posits a trade-off between rights and security and work to build citizen security based on human rights and democratic participation.

Laura Carlsen is the director of the Americas Program of the Center for International Policy. She is based in Mexico City and has written extensively on security and human rights issues.