A Pyrrhic Victory in Mexico: Still No Justice for the Disappeared of Ayotzninapa

The GIEI for Ayotzinapa, an interdisciplinary group of independent experts convened by the Inter-American Commission on Human Rights, has just delivered its final report in Mexico City on Sunday September 6, 2015. At the end of September 2014, 43 trainee teachers from Ayotzinapa were forcibly disappeared, probably by state agents belonging to various layers of Mexico’s abusive military, security and police forces. The IACHR established the GIEI to analyze how the state investigated those disappearances. The Mexican government paid for the GIEI experts to do their work. The IACHR established the GIEI, it said, to help protect and promote human rights in the Americas.

Across 560 pages, the report picked apart the Mexican government’s version of events explaining what happened to the 43 Normalista students of Ayotzinapa on September 26, 2014. Immediately, international human rights lawyers and many Mexicans started to speak about how the GIEI had proved the Mexican government’s version of events to be false. And that the report could help to establish hope, for the families of the Ayotzinapa 43 and for Mexican society. Commentators consider the GIEI report a necessary step in the search for justice in conflict-ridden Mexico.

But there’s a strict definition of justice under international human rights law. Much of the definition is conceptual, and so particular requirements can vary by case. But there are some common elements. Under regional human rights law (specifically the American Convention on Human Rights) justice exists only when the state admits its responsibility for the violations, provides reparations to the victims, and reforms its practices and procedures so that the violations can never happen again.

The GIEI report delivers none of these objectives — instead it has issued recommendations that are not legally binding — even though the experts worked under under the mandate of an Organization of American States’ Treaty Body, the Inter-American Commission on Human Rights and with the consent of the Mexican state.

Justice also comes in different procedural forms in the regional human rights system, from the Commission and/or from the Inter-American Court of Human Rights. The only way to force a state to admit its international responsibility, provide reparations and guarantee non-repetition for violations is to secure a judgement in the case from the Court. Prior to this ultimate objective, the case at the Court must begin as a petition to the Commission since it plays gatekeeper to the other. The Commission cannot force the state to comply, however, so that is why jurisprudence from the Court on a case is the gold standard for justice in the Inter-American Human Rights system. State parties to the American Convention on Human Rights rarely, if ever, explicitly disobey judicial orders from the Court. State parties are more willing to defy the Commission, which is why the Court exists: to force serious human rights abusing states to comply.

It is precisely the rules that govern the process of admissibility to the Commission and the Court that will now bedevil the Ayotzinapa victims. The GIEI report presents obstacles to the requirements demanded by rules of admissibility to the Commission and the Court. The GIEI has used its expertise to provide short term clarity to the Ayotzinapa case, something psychologically important to the victims’ families. The report proves the families rational from the very first in dismissing the state’s bogus theories. But the likely outcome for the abuses the families and the disappeared have suffered? One answer: that the Ayotzinapa victims will never receive judgement from the Court. Why?

The only way into the regional human rights system for any victim in the Americas is through the Commission. One of the primary requirements for gaining access to the Commission is the exhaustion (or proven ineffectiveness) of domestic remedies required under law by the state. The Mexican State will undoubtedly now claim that by funding and allowing the GIEI experts to work in Mexico and issue a report on Ayotzinapa, it has exceeded requirements under its own Mexican domestic criminal law.

So, what the GIEI has done is to point out to the Mexican state shortcomings in the investigation of the missing Ayotzinapa students in a way that will help the Mexican state avoid litigation at the Commission or the Court. What the state now has to do is show that it has taken the report seriously and tried to implement its recommendations. Neither the Court, nor the Commission, can actually stand behind the GIEI’s recommendations, because the GIEI report has been produced outside of formal proceedings at either Commission or the Court. The Mexican state knows that the GIEI Ayotzinapa report is just that, the expression of independent experts. Unlike the Court’s jurisprudence, the GIEI report is not the strong expression of judges. Nor is it even the weaker expression of Commissioners.

It’s no wonder, then, that immediately after release of the report, Mexico’s president, Enrique Peña Nieto, tweeted that his cabinet must take into account the results of the GIEI investigation. As long as the Mexican state can say that it is trying to comply with the report the more it can delay the victims’ families from petitioning the Commission in a formal case. And without a petition to the Commission there can be no case at the Court. The Ayotzinapa victims will never receive the gold standard of justice provided for under the American Convention on Human Rights.

There’s an added layer of interpretation needed, to realize just exactly what type of human rights justice the GIEI report squashes. The new lead in the inquiry provided by the GIEI report is that the Ayotzinapa students inadvertently seized a bus laden with heroin. The final destination of that heroin? The United States. So Ayotzinapa is also a case that illuminates another tragedy of the global prohibition on drugs and the excesses of the militarized drug war. Lest it be forgotten, over the last nine years the drug war in Mexico has killed more than 100,000 people with more than 25,000 disappeared. Ayotzinapa is a drop in the ocean of that suffering. The Inter-American Human Rights System of which the Commission and Court are integral parts has had almost nothing formally to say about Mexico’s drug war. It is a conflict, then, that has no regionally-accredited human rights victims. Although it would be dumb, of course, to suggest that there are no human rights victims in drug war Mexico. Which is why the silence of the Inter-American system is so deafening.

The legal situation described above shows that the GIEI Ayotzinapa report is a bar to a regionally defined treaty standard of justice. Thus, one consequence of the GIEI report is that the Inter-American Court of Human Rights is unlikely ever to adjudicate a case related to the Mexican state’s responsibility for drug war human rights violations. Ayotzinapa, as an emblematic human rights case, had all the necessary elements for a successful case to the Court about the Mexican state’s responsibility for human rights violations in the drug war. Bar one: the exhaustion or ineffectiveness of domestic remedies. Neither criteria has currently been met. To the contrary: the Mexican state invited the GIEI to do its work and even funded its activities. Why would the Mexican state do that, if not to place a permanent obstacle to the Ayotzinapa case reaching the Court?

Ayotzinapa is emblematic of human rights abuses in the drug war in the Americas. That’s one reason why so many international human rights lawyers have signed on to examining it — there are no other cases from drug war Mexico that seem to be even inching close to the Commission. For the Ayotzinapa families, getting the case to the Commission, the gatekeeper to the Court, the institution that defines formal justice in human rights violations in the Americas, is now more complicated, rather than less. This means that the GIEI report is the nadir, not the zenith, of human rights protection for drug war Mexico.

Patrick Timmons is a human rights investigator who teaches History at El Paso Community College. Criticize his arguments via Twitter @patricktimmons.