Secretary of State Hillary Rodham Clinton
U.S. Department of State
2201 C Street NW
Washington, DC 20520
Dear Secretary Clinton,
I am writing you to share Human Rights Watch's concerns regarding Mexico's ongoing lack of compliance with the Merida Initiative's human rights requirements.
I recently traveled to Mexico City to release a Human Rights Watch report that documents the country's persistent failure to ensure that a rapidly growing number of serious abuses committed by the military are investigated and prosecuted. Based on the findings of our report, as well as multiple meetings I had with senior Mexican officials, I can assure you that Mexico is currently not meeting one of the Merida Initiative's key conditions: that army abuses be investigated and prosecuted by civilian rather than military authorities.
Mexico today is undoubtedly facing a severe public security threat. We share the view that the US government should support Mexico's efforts to curb organized crime and drug-related violence. We also believe that the Merida Initiative provides the Obama administration with an important opportunity to strengthen US-Mexican drug enforcement and human rights cooperation. To capitalize on this opportunity, however, the Obama administration should vigorously enforce the human rights requirements included in the aid package.
Toward that end, and in light of our own recent findings, I would respectfully urge you not to issue the report certifying Mexico's compliance with the Merida Initiative's human rights requirements until you are able to determine that Mexico is in fact meeting these conditions, as required by US law.
Military Impunity
Our recent report, "Uniform Impunity," shows that Mexican soldiers engaged in counternarcotics and public security operations routinely commit egregious human rights abuses-including rapes, killings, torture, and arbitrary detentions-and that impunity for these abuses is the norm. [1]
The number of complaints of human rights abuses committed by the Mexican military has increased six-fold in the last three years, since President Calderon deployed approximately 40,000 troops to combat drug trafficking and organized crime. The number of complaints filed before the National Human Rights Commission was 182 in 2006, 367 in 2007, and 1230 in 2008.[2]
Mexican military courts-which routinely take over the investigation of military abuses against civilians-have not produced over the past 10 years a single conviction against a member of the military accused of committing a serious human rights violation.[3]
As our report shows, this appalling record results from several basic flaws within the military justice system: the secretary of defense wields both executive and judicial power over the armed forces; military judges have little job security and may reasonably fear that they will be removed if they make decisions that the secretary dislikes; and there is virtually no public scrutiny of military investigations and trials.
The Mexican Constitution allows for military jurisdiction only for "crimes and faults against military discipline."[4] However, the Code of Military Justice, purporting to interpret the Constitution, establishes a very expansive notion of such offenses that includes "faults under common or federal law... when committed by military personnel in active service or in connection with acts of service."[5] Based on this broad definition, the Mexican military has expanded the scope of cases it asserts the power to investigate and prosecute to include serious human rights violations committed by the military against civilians.[6] But acts of torture, rape, and unjustified use of lethal force against civilians should not be considered part of soldiers' discharge of their duties.
There is currently no effective recourse in Mexican law for victims of military abuse to challenge before civilian courts the use of military jurisdiction in these cases. The only mechanism available to appeal military decisions before civilian courts is the amparo (the Mexican equivalent of an injunction); however this is essentially a tool for the accused to seek protection of his or her due process rights. Abuse victims cannot ask federal courts to overturn the decision of military prosecutors not to press charges or military tribunals' acquittal of abuse suspects.[7]
The Merida Initiative Human Rights Requirements
As you know, 15 percent of the Merida Initiative funds have been withheld and may not be made available unless and until the US Secretary of State reports to Congress that the Mexican government has met four human rights requirements.[8] One of those requirements is that the Mexican government is:
ensuring that civilian prosecutors and judicial authorities are investigating and prosecuting, in accordance with Mexican and international law, members of the federal police and military forces who have been credibly alleged to have committed violations of human rights, and the federal police and military forces are fully cooperating with the investigations.[9]
This condition is important not only for curbing rampant military abuses but also for improving the Mexican security forces' effectiveness and their ability to confront drug-related violence. So long as there is no real accountability, the army in Mexico will continue to commit abuses. And when soldiers commit human rights crimes, they damage their image as a professional force that is respectful of civilians, and contribute to the climate of lawlessness and violence that is also part of what is fueling Mexico's public-security problem. In addition, they provoke distrust and fear among populations that otherwise are best placed to assist law enforcement efforts.
To promote changes in Mexico that are necessary to improve public security and to end the existing pattern of military impunity, the Obama administration should vigorously enforce the Merida Initiative's human rights requirements. Specifically, we recommend that you issue a written report certifying Mexico's compliance with the Merida Initiative's human rights requirements only if and when you can determine that:
- 1) Mexico has effectively reformed its military justice system to ensure that all alleged cases of serious human rights abuses are tried by civilian authorities; and
- 2) all alleged cases of serious human rights abuses are in fact being investigated and tried by civilian authorities (including cases already pending before the military justice system, which should be transferred to civilian courts).
We also urge that you to carry out extensive consultation with civil society organizations and human rights advocates, both within Mexico and at the international level, before issuing any report on Mexico's compliance with the Merida conditions.
In addition, we hope the Obama administration will work with the US Congress in the future to ensure that any additional aid package supporting the Mexican military and police forces contains strong and unambiguous human rights conditions, requiring that funds be withheld if those conditions are not met.
Thank you very much for your attention to these serious concerns.
Sincerely,
Kenneth Roth
[1] The report, which was released in April 2009, is available at https://www.hrw.org/en/news/2009/04/29/mexico-hold-military-account-rights-abuses.
[2] See the National Human Rights Commission's 2006 and 2007 annual reports, available at http://www.cndh.org.mx/, and press release CGCP/041/09, March 20, 2009, available at http://www.cndh.org.mx/comsoc/compre/2009/041.html.
[3] Despite repeated requests during our research, the Mexican Ministry of Defense has failed to provide a single example in the last ten years in which a member of the military tried by the military justice system has been convicted for committing a human rights abuse. In April 2009, several months after our initial request, the military attorney general told us that there were no convictions in recent years. In June 2009, government officials from the Mexican Ministry of Foreign Affairs stated during Mexico's Universal Periodic Review in Geneva that the "there are 9 registered convictions against 14 military personnel [in the military justice system]." However, they did not provide any information regarding the crimes for which the men were convicted or the criminal sanctions, if any, that were imposed on them. Nor did they provide information on the dates of the facts or the rulings. (See: "UNIVERSAL PERIODIC REVIEW. Report of the Working Group on the Universal Periodic Review. Mexico. Addendum. Views on conclusions and/or recommendations, voluntary commitments and replies presented by the State under review," http://lib.ohchr.org/HRBodies/UPR/Documents/Session4/MX/A_HRC_11_27_Add1_MEX_E.pdf, para. 16.)
[4] Mexican Constitution, art. 13: "No one may be tried under private laws or by ad hoc courts. No person or corporation may have any privileges nor enjoy emoluments other than those paid in compensation for public services and which are set forth by the Law. Military jurisdiction prevails for crimes and faults against military discipline; but under no cause and for no circumstance may military courts extend their jurisdiction over persons which are not members of the Armed forces. When a crime or a fault to military law involves a civilian, the case shall be brought before the competent civil authority."
[5] Code of Military Justice, art. 57(II)(a).
[6] This practice, however, should have been brought to an end by a 2005 Supreme Court ruling that is binding on all judicial authorities, including military ones. Over 30 years ago, the Mexican Supreme Court issued several contradictory and non-binding decisions that did not clearly define when a crime could be committed during or in connection with "active service" and thus erratically sent cases involving civilian victims alternatively to military and civilian courts. But in 2005 the court clearly limited the scope of the provision by defining "service" as "performing the inherent activities of the position that [he or she] is carrying out." The court did not explicitly state that all military abuses against civilians should be sent to civilian prosecutors and courts but serious abuses such as rape and torture clearly cannot be considered "inherent activities" of the military.
Mexican constitutional law experts also note that the Constitution clearly provides that civilian prosecutors should investigate cases when a civilian commits, or is a victim of, a crime.
The military's practice of asserting jurisdiction in cases involving army abuses against civilians also disregards the recommendations of several international bodies that have specifically addressed the issue over the past decade. International human rights bodies have consistently rejected the use of military prosecutors and courts in cases involving abuses against civilians, by stating that the jurisdiction of military courts should be limited to offenses that are strictly military in nature. Mexico violates its international obligations by allowing its military justice system to investigate, prosecute, and try members of the military accused of committing human rights violations. Over the last decade several United Nations rapporteurs and bodies, as well as the IACHR, have issued reports documenting the lack of independence and impartiality in Mexico's military justice system and the consequent impunity of human rights abuses investigated by military courts. Therefore, they have consistently called on Mexico to transfer human rights cases to civilian courts.
[7] Currently, under Mexican law, the only relief that victims of military abuse can obtain through the amparo procedure is a court instruction to military authorities that they reconsider their decision to close an investigation (or review the scope and implementation of reparations in the case of an actual conviction). Federal courts cannot overturn the decisions of military prosecutors and judges. There is currently one amparo petition pending before the Mexican Supreme Court in which the court has been asked to recognize a right of victims to challenge the use of military jurisdiction for cases involving army abuses against civilians.
[8] The only exception to this 15 percent withholding is the US$ 260 million included for the Navy in the third installment of the Merida Initiative.
[9] Supplemental Appropriations Act 2008, H.R.2642, http://thomas.loc.gov/cgi-bin/query/D?c110:9:./temp/~c110vgqONm, section 1406 (b) (3). See also Department of State, Foreign Operations, and Related Programs Appropriations Act, 2009, http://thomas.loc.gov/cgi-bin/query/D?c110:9:./temp/~c110vgqONm, section 7045 (e), and Supplemental Appropriations Act 2009, H.R. 2346, http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=111_cong_bills&docid=f:h2346enr.txt.pdf , section 1108.
