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IV. OBSTACLES TO PROGRESS

Limited Resources

Shortly after the creation of the Special Prosecutor’s Office, Mexico’s attorney general, Rafael Macedo de la Concha, promised that the office would receive all the resources it needed to fulfill its mission.³² Yet numerous officials within the Special Prosecutor’s Office told Human Rights Watch that the office had been seriously understaffed and underfunded during the first year and a half of operation.

The chief problem has been a shortage of personnel. The office opened with fifteen prosecutors and after a year had grown to include thirty-five—which, according to officials within the Special Prosecutor’s Office, was still not enough. When asked about the lack of progress on investigations, the special prosecutor himself explained that the work had been backed up due to the lack of prosecutors.³³ In Guerrero, for example, where the office has received over 300 complaints—and expects to receive many more—the office had had only eight prosecutors handling the cases. These same prosecutors were also responsible for numerous cases in other states, which they were forced to neglect for months. When they did turn to the other states, they had no choice but to neglect the Guerrero cases—and when they returned to Guerrero they had to put the other cases on hold once again.³⁴

The cases these prosecutors are handling can be particularly time-consuming, given their politically sensitive nature and the legal complexities that they entail (discussed further below). Collecting reliable evidence is unusually difficult given the long lapse of time since the crimes occurred, the mistrust and skepticism of many of the victims and relatives, and the unwillingness of former officials to provide information.

Other areas have also been affected by the shortage of personnel. For example, the Special Prosecutor’s Office has set up a program to provide psychological attention to victims and their relatives. However, the program includes only two mental health professionals, making it impossible to provide services to any more than a small fraction of the people who could benefit from them.³⁵ Perhaps the most critical shortage in personnel is in the documentation center (discussed more fully in the next section), in which a team of five researchers has been given the daunting task of searching through millions of declassified government documents for evidence that will be crucial to the cases under investigation.

The staff shortage appears to be reflected as much in the quality as the quantity of the personnel. Human Rights Watch encountered officials within the Special Prosecutor’s Office who seemed to be serious and motivated about their work. But several of these officials told Human Rights Watch that a significant number of their colleagues had little or no background in handling human rights cases.³⁶ One official reported working with prosecutors who had little idea of how to conduct an effective interview of victims’ relatives and, as a result, neglected to ask for fundamental information.

We also received numerous complaints from NGOs and relatives of victims about the lack of professionalism of some members of the Special Prosecutor’s Office. These complaints ranged from the failure to number the pages in the case files (a legal requirement that deters the removal of documents), to efforts, in one case, to deny one woman standing as a relative in the case of her common-law husband, who was forcibly disappeared in the 1970s.³⁷

Top officials within the office, including the special prosecutor himself, acknowledged to Human Rights Watch that staff training had been inadequate. Prosecutors had not received extensive training on how to handle human rights cases of this sort. And while some had participated in training sessions to “sensitize” them to the political context in which the crimes took place and the issues facing the families, these sessions had been “superficial.”³⁸ The special prosecutor attributed the lack of adequate training to the office’s lack of resources, though he indicated that he would be asking the Attorney General’s Office to arrange new training sessions in the near future.

The Special Prosecutor’s Office does not have any forensic equipment and until recently did not have its own forensic expert. Instead it had to rely on experts sent over by the Attorney General’s Office.³⁹ Similarly, it has not been provided with its own team of investigators but rather has had to rely on police investigators provided by the Federal Investigations Agency (Agencia Federal de Investigación, AFI). In Guerrero, AFI agents have been called off other assignments and sent to interview relatives and potential witnesses in “disappearance” cases. According to one of these agents, they have not been compensated for the substantial transportation expenses or for the overtime they have put in to fulfill the additional assignment.⁴⁰ Nor have they received any special training in how to handle these cases, which they have found to be exceedingly difficult given the distrust that the relatives and witnesses feel toward the federal police. 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.

In addition to the shortage of staff, the Special Prosecutor’s Office has been plagued by a lack of material resources. One veteran prosecutor told Human Rights Watch that in his fifteen years working with the PGR, he had never seen such a lack of resources.⁴¹ Whereas normally each prosecutor would have his or her own computer and secretary, he had been sharing a computer with seven other prosecutors and a secretary with nine others. Officials in the Guerrero office told Human Rights Watch that the lack of resources had been a major obstacle for them in handling the large number of cases in the region. The Guerrero office’s budget of $5,000 (roughly US$500) a month had proven inadequate to cover its operating costs. Several members of the Special Prosecutor’s Office also reported that some of their colleagues had been forced to work for months without receiving salaries.

At the end of May 2003, the number of prosecutors assigned to the Special Prosecutor’s Office was increased to fifty-seven. The special prosecutor assured Human Rights Watch that, along with the increase in staff, there had come an increased commitment of material resources. According to the office’s top prosecutors, this long overdue increase would make it possible for them to accelerate the pace of their investigations. Yet sources within the office also told Human Rights Watch that the increase, while welcomed, was still short of what was needed to cover all their cases. It also remained to be seen whether the larger team of prosecutors would receive the resources and training they needed for the job.

Without having audited the special prosecutor office, Human Rights Watch is not in a position to determine whether the lack of resources has been caused entirely by an inadequate budget, or whether it is due in part to a poor management of funds within the office.⁴² What is clear is that the people carrying out the investigations feel they have not received the resources they have needed up till now.

Limited Access to Government Documents

A key component of the executive order creating the Special Prosecutor’s Office was its instruction to “open” government archives that contained information related to past abuses.⁴³ Specifically, the president instructed the Interior Ministry to deposit in the National Archive (Archivo General de la Nación) all the documents generated by two extinct agencies that had directed internal surveillance and security operations—the Federal Security Directorate (Dirección Federal de Seguridad)and the General Directorate of Investigations (Dirección General de Investigaciones). The president also instructed the Interior Ministry to collect and deposit in the National Archive documents from other government agencies that might be relevant to the special prosecutor’s investigation. In June 2002, these instructions were carried out and some eighty million documents were deposited in the National Archive.

The release of these documents promised to be—in and of itself—a major step toward accountability for abusive state practices. According to independent investigators who have examined the archives, the files contain a wealth of detailed information on human rights violations, as well as insights into the command structure and modus operandi of institutions that carried them out.⁴⁴ Their release meant that victims and relatives would now be able to conduct research on their own particular cases. Scholars and journalists would be able to study the inner workings of past governments. And, most critically, the Special Prosecutor’s Office would be able to obtain evidence for its investigations. In the likely scenario that former government officials refused to cooperate with the special prosecutor, these documents might provide the only inside accounts of the state’s involvement in past abuses.

Unfortunately, however, access to the released documents has been seriously curtailed by a variety of factors. To obtain material, researchers must submit written requests to the archive staff, listing topics of interest, and then wait (as long as ten days) for relevant documents to be retrieved. The determination of which documents are relevant is made by the archive staff and, in particular, the director of the particular collection, who is ultimately responsible for which documents are shown to researchers.⁴⁵ In the case of independent researchers (including victims and relatives), the archive staff is authorized to deny access to documents that might infringe upon the “privacy” of other people. Such “privacy” restrictions are commonplace in government archives. In the United States, for example, public access to government documents is limited by the 1974 Privacy Act, which restricts public access to government documents with information about other people’s personal lives, but does not limit access to information about people’s professional or public activities.⁴⁶ Unfortunately, in Mexico, there is no clear definition of what constitutes protected “private” material. Various researchers (including victims’ relatives) report being denied access to documents on “privacy” grounds, only to learn later that the documents in question contained no information on other people’s personal lives.⁴⁷ One researcher recalled the director of the DFS collection, Vicente Capello, refusing to show her some documents on the grounds that they revealed the identities of government informants. When she challenged him to show the legal basis for this refusal, he responded only that it was his own decision.⁴⁸ The former director of the National Archive acknowledged Capello’s authority to make such decisions, according to one press account, saying that he had “absolute discretion” to determine which documents a researcher could see.⁴⁹

This privacy restriction does not apply to the investigators from the Special Prosecutor’s Office. However, they too must rely on the archive staff—and particularly the director of each collection—to determine which documents are “relevant” to the topics they are investigating.

Giving one person full discretion over what documents researchers see is problematic for several reasons. One is the risk that this person could abuse his or her authority to deny access to documents that should be public. This risk is particularly pronounced under the current arrangement for the one of the most important collections—the archives of the DFS—given that the official in charge, Vicente Capello, was himself a DFS employee for decades.⁵⁰ Capello’s background has prompted suspicions among victims, relatives, and journalists that he may be preventing the release of important documents that incriminate his former colleagues. Whether or not these suspicions are well-founded, there clearly is a strong potential for conflicts of interest arising here.

Another problem with this arrangement is more structural in nature. Under the current arrangement, any release of documents with information about powerful and potentially dangerous individuals ultimately depends on the person in charge of the archives. That fact makes him—and to a lesser extent his staff—vulnerable to pressure from people who might wish to prevent the release of incriminating material. One credible source told Human Rights Watch that individuals working in the archives had, in fact, already been subject to acts of intimidation.

The greatest obstacle to access is far more mundane, however. The archives are not indexed or catalogued. Unlike other government archives in Mexico and elsewhere, researchers are not provided with any information about what documents they should expect to find inside. (The United States national archivesin Maryland, for example, has a room full of research aids to guide researchers in their hunt for documents.) As a result, investigators have no way of knowing where to look for information relevant to their research—or of knowing whether the archive staff is providing all the information that it should. As one experienced investigator put it, releasing the files without providing an index is “almost like not making them accessible at all.”⁵¹

To compensate for the lack of indexes and catalogues, the documentation center of the Special Prosecutor’s Office has been developing its own—slowly mapping the archives’ content based on what documents the archive staff bring them. This is an enormously arduous and time-consuming task. While the archive contains millions of documents (according to the director of the documentation center, they would climb three kilometers if stacked on end), the documentation center has only five researchers. The center’s director told Human Rights Watch that she would need twice as many researchers to a “thorough and irrefutable job.”⁵² This assessment was echoed by the Mexican scholar, Sergio Aguayo, who has published two books based on research he did in the archives before they were opened to the public. Aguayo had more researchers for each of his books than the Special Prosecutor’s Office has had for its hundreds of cases, and he told Human Rights Watch that the special prosecutor’s documentation center “definitely does not have enough people to do the job that it has to do.”⁵³

A year after these documents were “released,” it is clear that more must be done to make them genuinely accessible. Specifically, the government should make sure the archives are equipped with the basic research aids that any archive needs to function: an index and catalogue of its contents. This work should not be left to the special prosecutor, who already has more than enough to do investigating hundreds of cases, but rather the government ministries that generated the documents in the first place.

The government should also redesign the procedure by which researchers gain access to documents. It should stop granting full discretion over who sees what to a single individual. It should develop a more precise and sensible definition of the type of “privacy” that is to be protected (and seek passage of legislation establishing this definition as a legal standard). It should develop a review procedure by which researchers can appeal decisions to deny access to documents. Finally, it should work to avoid real or perceived conflicts of interest including cases in which individuals making decisions about access to documents have had direct ties to the institutions or persons that may be under investigation.

Limited Cooperation by the Military

Another recent development that appeared to parallel and potentially reinforce the mission of the Special Prosecutor’s Office has been the Mexican military’s public embrace of human rights prosecutions. On multiple occasions the military’s top brass has expressed its commitment to making sure army abuses do not go unpunished.⁵⁴ In September 2002, the military attorney general’s office (Procuradur’a General de Justicia Militar, PGJM) appeared to make good on this commitment by indicting three officers for their alleged involvement in the deaths of 143 people who “disappeared” while in army custody during the 1970s.⁵⁵ This indictment was the first formal recognition by the military of its role in abuses from that era—and, in that regard, it represented an important break from years of official silence and denial.

The military’s new attitude should have been a great boon for the Special Prosecutor’s Office. Given the fact that military officers were directly involved in many—if not most—of the crimes under investigation, the Mexican military is in a position to make a major contribution to the special prosecutor’s investigations. Current and former officers could provide testimony, and the institution itself could provide documentary evidence that would help investigators determine who was responsible for the violations and what happened to the victims. Short of that, these documents could expedite the special prosecutor’s investigation by identifying potential witnesses and other leads. Moreover, military documentation could be needed at trial to determine that particular witnesses or suspects actually served in the military (since, in Mexican courts, eyewitness identifications are insufficient to establish someone’s military status).

Unfortunately, however, the military’s professed commitment to accountability has not translated into full and active support for the Special Prosecutor’s Office. The executive order establishing the Special Prosecutor’s Office instructed the Minister of Defense to have the PGJM provide prosecutors with information needed for their investigations.⁵⁶ Yet several officials in the Special Prosecutor’s Office told Human Rights Watch that the military had failed to provide all the information requested of it. When asked for information that would aid the investigations, PGJM officials have routinely claimed that they were unable to find what was asked for. 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 PGJM responded that “no information was found relating to the incidents that you mention.”⁵⁷ When asked for the names of the officers who served in 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.”⁵⁸

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 in and the dates he served there—yet, still, the PGJM claimed it could find no information on the officer.⁵⁹

The PGJM’s repeated claims that it could not locate information seems highly dubious given the fact that, according to people who have done extensive research in the National Archives, the military keeps exceptionally detailed and well-organized files. While it certainly may be true that locating the requested information is a time-consuming task, that is precisely the task that the president assigned the military in the executive order that established the Special Prosecutor’s Office.

Unfortunately, instead of devoting more time and energy to supporting the special prosecutor’s investigations, the PGJM has chosen to pursue its own prosecution of some of the “dirty war” crimes. In September 2002, the PGJM indicted three military officers for their role in some of the “disappearance” cases under investigation by the special prosecutor. In February 2003, the PGJM installed an office in Atoyac de Alvarez, Guerrero—a short distance from the office already established by the special prosecutors office—and began calling on victims’ relatives to provide testimony about alleged “disappearances” committed by the army.

While the indictment represented an important—if long overdue—recognition by the military of its role in past abuses, this achievement was undercut by the fact that these cases 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.⁶⁰ 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.”⁶¹

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,"⁶² 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."⁶³ (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.⁶⁴)

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.”⁶⁵ Accordingly, when both military and civilians are suspected of committing a particular crime, the case goes to civilian courts.⁶⁶ 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.⁶⁷

The PGJM may be genuinely committed to prosecuting these crimes. 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.⁶⁸ A third is the fact that the indicted military officers were already in jail facing drug charges. A fourth factor, mentioned above, is the fact that the PGJM was violating the Mexican constitution by asserting jurisdiction over the case.

Whether or not the PGJM is serious about prosecuting these cases, its assertion of jurisdiction presents serious obstacles to the Special Prosecutor’s Office. Chief among these is the possibility 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 the United States, 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 fear. 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.⁶⁹ Another woman who refused to testify explained that she could not believe the military had any intention of conducting a serious investigation. “They ignored us back then,” she said, “why would it be different now?“⁷⁰ Other relatives in Atoyac de Alvarez, who themselves had not yet been called upon for testimony, expressed similar distrust of the PGJM’s investigation. One woman said she would not collaborate with a military investigation since “[t]hey are the ones who took my husband away.”⁷¹ 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.⁷² Another woman asked rhetorically, “How am I going to go to the PGJM when I’m denouncing an army general?“⁷³

As Human Rights Watch documented in its 2001 report, Military Injustice: Mexico’s Failure to Punish Army Abuses, this sort of fear and distrust of military authorities is widespread in Guerrero. Civilians often do not differentiate military justice officials from other officers. Indeed, when civilians received invitations to give statements before military prosecutors, they perceived what might have been a good-faith effort on the part of the PJGM as a form of harassment. Even if the PGJM were fully committed to combating human rights abuses by the army, it would be difficult to convince civilians that military prosecutors were able to act independently of the interests of the army.

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.”⁷⁴

Even if the military prosecution does not end in acquittal, the anxiety caused by the PGJM’s presence in Atoyac de Alvarez may have already impaired the work of the Special Prosecutor’s Office there, exacerbating 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.⁷⁵ According to another official, the fact that the PGJM set up its Atoyac office 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 office of the special prosecutor one day to solicit testimony from family members who arrived there.⁷⁶

The PGJM did disband its Atoyac office in February 2003 after human rights groups complained about it to the Interior Ministry. Then, in June, the PGJM announced that it might strip the accused officers of their military rank and then cede jurisdiction over their cases to civilian authorities. Both these actions represented a welcome retreat from the PGJM’s interference in the special prosecutor’s work. However, much more is needed for the military to make good on its professed commitment to accountability. Above all, it needs to take its obligation to support the special prosecutor more seriously by doing whatever is necessary to secure the information requested by the special prosecutor.

Statutes of Limitations

In addition to the problems plaguing its investigations, the Special Prosecutor’s Office is facing a serious problem that could affect its prosecutions. Mexican courts may rule that many if not most of the cases must be dismissed because the time period during which prosecution is allowed has already elapsed. The president himself indicated as much when he said, in November 2002, that it might be impossible to prosecute most of the cases.⁷⁷ This prediction found some support in April 2003, when a judge blocked the first effort by the Special Prosecutor’s Office to obtain arrest warrants, arguing that the statute of limitations on the alleged crime had run.

Mexican jurists are divided over whether or not statutes of limitations present an insurmountable obstacle for the prosecution of these cases.⁷⁸ There is general agreement, however, that successful prosecutions will require navigating uncharted legal terrain and developing novel legal strategies that are acceptable to Mexican courts.

A brief review of the legal issues involved reveals that this could be a challenging task. Most of the cases under investigation took place in the late 1960s and early 1970s. In cases where the victims were clearly killed, the prescription appears to be unambiguous: the statute of limitations allows prosecution up to thirty years after the killing took place and that time period has elapsed. (Under Mexican law, a prosecutor must open an investigation, not press charges, before the time period allotted by the statute of limitations expires. So homicide cases that occurred before 1972 would, in principle, no longer be subject to prosecution by the special prosecutor who only began his investigations in 2002.) What could be more difficult are cases of forced disappearance, where it is unclear what exactly happened to the victim—and when—and therefore at what point the statute of limitations began to run.

Forced Disappearance

The crime that most adequately describes what took place in the majority of cases investigated by the Special Prosecutor’s Office is “forced disappearance.”⁷⁹ Under international law, prescription should not be a problem when prosecuting these cases. On the contrary, the Inter-American Convention on Forced Disappearance of Persons stipulates that criminal prosecution of this crime “shall not be subject to statutes of limitations.”⁸⁰

However, Mexico only established the crime of forced disappearance in its federal criminal code in 2001. And when it ratified the Inter-American Convention in 2002, it included an interpretative declaration stating that “it shall be understood that the provisions of said Convention shall apply to acts constituting the forced disappearance of persons ordered, executed, or committed after the entry into force of this Convention.” This interpretative declaration refers to Article 14 of the Mexican constitution, which holds that “no law will be applied retroactively to the detriment of any person.”⁸¹ Under Mexican law, therefore, it is impossible to charge someone with a specific offense of forced disappearance that was carried out before 2001.

One way to avoid the retroactivity problem may be to treat forced disappearance as a continuing crime. Under the Inter-American Convention, “forced disappearance…shall be deemed continuous or permanent as long as the fate or whereabouts of the victim has not been determined.”⁸² Similarly, the United Nations Declaration on the Protection of all Persons from Enforced Disappearances states that “[a]cts constituting enforced disappearance shall be considered a continuing offence as long as the perpetrators continue to conceal the fate and the whereabouts of persons who have disappeared and these facts remain unclarified.”⁸³

In other words, the prosecution could argue that a crime of forced disappearance from the 1970s is still underway today, in violation of the law established in Mexico in 2001.

This argument might be undermined, however, by the definition of forced disappearance in Mexican law, which attributes the crime to the public servant who keeps the victim hidden “under whatever form of detention.”⁸⁴ Unlike the international definitions—under which the crime continues as long as information about the victim is withheld—the Mexican definition appears to limit the crime to the time during which the victim is actually detained. Consequently, under Mexican law, the prosecution would probably have to establish that the “disappeared” person continued to be held in detention after the crime was put on the books in Mexico.

The international definition should, in principle, override the domestic one, since the Mexican Supreme Court has held that international treaty obligations override domestic law. However, given the fact that the judicial branch is not accustomed to applying international legal norms that differ from domestic ones, persuading courts of the merits of this position may require a significant effort on the part of the Special Prosecutor’s Office.

Illegal Abduction

Given the retroactivity problem, the Special Prosecutor’s Office has chosen not to bring charges of forced disappearance now, but instead to apply the crime of illegal abduction (privacion ilegal de la libertad), which did exist in the Mexican penal code in the 1970s when most of the “disappearances” took place.

The time period established by the statute of limitations for the type of abductions under investigation is only twenty-two years and six months. However, the Special Prosecutor’s Office is arguing that this crime is a continuous or permanent one (the two terms appear to be used interchangeably in the Mexican penal code⁸⁵), and that there is a legal presumption that the crime is ongoing as long as there is no evidence that the victim has been liberated or turned over to judicial authorities.

The special prosecutor has supported his claim that illegal abduction is a permanent crime with two court rulings regarding what makes a crime be classified as “permanent.”⁸⁶ But neither court ruling addressed the specific problem here—namely, whether there is a presumption that the crime is continuing so long as the corpse does not appear. And some jurists have flatly rejected the argument that there exists a legal presumption that the persons continue to be alive and in detention. On the contrary, they believe the prosecutors would have the burden of proving that the detention is ongoing, which would most likely be impossible.

In the one case that the Special Prosecutor’s Office has brought before a federal judge—seeking an arrest warrant—the judge simply ignored the special prosecutor’s argument about the crime being ongoing and held that the statute of limitations had already run. The special prosecutor has appealed this ruling.

Homicide

Several jurists told Human Rights Watch that, rather than trying to build a case on the presumption that “disappeared” individuals remained alive, it would be more feasible to make a case that the victims had in fact been killed. Prescription would no longer be a problem for the “disappearance” cases that took place less than thirty years prior to when the special prosecutor began investigating them (since the statute of limitations for this type of homicide committed in the 1970s is thirty years).

It should not be difficult to establish a presumption that the victims of forced disappearances in the 1970s were in fact killed. To strengthen this argument, moreover, prosecutors might need to shift the focus of their investigations. One experienced criminal lawyer told Human Rights Watch that it would be necessary to collect evidence pointing to the death of the victim. Exhumations of clandestine cemeteries could become a top priority (making it all the more critical for the Special Prosecutor’s Office to acquire the forensic equipment and expertise it currently lacks). Since the remains of many victims would, presumably, never be found, it might be necessary to develop lines of investigation aimed at supporting, through circumstantial evidence, a presumption that the victims had in fact been killed.

The question for the Special Prosecutor’s Office, then, is whether it is more feasible to establish a presumption of death or a presumption of ongoing detention—and what would be the evidentiary requirements at trial for each.

Torture or Ill Treatment

Another possible approach would entail considering forced disappearance as a form of “torture” that is continuous. This is an argument that Spanish Judge Baltasar Garzón used in the case against Chilean ex-dictator, Augusto Pinochet, and has been endorsed by the United Nations Human Rights Committee, the Inter-American Court of Human Rights, and various international tribunals.

A forced disappearance may produce two classes of victims of torture or ill treatment: the person disappeared⁸⁷ and that person’s relatives.⁸⁸ In cases of the former, prosecutors would run into the same difficulty as with illegal abduction—having to establish a presumption that the victim is still alive. In cases of the latter, prosecutors would have little difficulty establishing that the relatives of the “disappeared” have been subject to extreme anguish—and continue to be today.

To prosecute anyone for the ongoing suffering inflicted upon the relatives of the “disappeared,” however, the prosecution may need to overcome the provision of article 14 of the Mexican constitution that prohibits the imposition “by simple analogy or even by overwhelming reason, any punishment that is not decreed by a law specifically applicable to the crime in question.”⁸⁹ It will be necessary then for the prosecution to identify a crime or crimes in the Mexican penal code that are specifically applicable to cases of forced disappearance.

Crimes against Humanity

Given that the torture, executions, and forced disappearances appear to have been carried out in a widespread and systematic way by state agents, they almost certainly rise to the level of “crimes against humanity,” as defined in international law.

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. 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 to which no statute of limitation contained in the laws of any state can apply.⁹⁰

In addition, prosecutors might refer 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.”⁹¹ 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.”⁹²

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.

But prosecutors could point out that this declaration does not affect Mexico’s obligations under the convention.⁹³ 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.” And, more significantly, it is wrong because the prohibition is also a non-derogable norm of international customary law.

For Mexican courts to accept this argument, the special prosecutor may also have to persuade them that an exceptional decision not to apply statutory limitations in these cases does not violate the prohibition on retroactive criminal laws in the constitution.⁹⁴ This is because the bar on statutory limitations for crimes against humanity already existed in customary international law when the acts being prosecuted took place. In any event, the prosecution’s efforts could be greatly facilitated if the Mexican legislature chose to recognize the State’s obligation under the convention by withdrawing the interpretative declaration.

Tolling of Statutory Limitations

Several Mexican jurists told Human Rights Watch that, under Mexican law, the statute of limitations may be suspended in cases where public prosecutors were prevented by government officials from pursuing cases. If, for example, prosecutors had been prevented from pursuing cases during the administration of Luis Echeverr’a (1970-76), then it might be argued that the clock on the statute of limitations only started running in 1976.

This argument would probably require evidence that, under previous administrations, prosecutors were prevented from pursuing cases. And even if the factual case could be made, the jurists acknowledge that the legal argument would entail a novel application of existing Mexican law.

Prosecutors could bolster the argument, however, by referring to international human rights standards. The United Nations Declaration on the Protection of all Persons from Enforced Disappearances, for instance, states that when the legal remedies guaranteed by the ICCPR “are no longer effective, the statute of limitations relating to acts of enforced disappearance shall be suspended until these remedies are re-established.”⁹⁵ The Human Rights Committee has held that human rights violations “should be prosecutable for as long as necessary, with applicability as far back in time as necessary to bring their perpetrators to justice."⁹⁶ Similarly the Inter-American Court has ruled that “provisions on prescription…are inadmissible” when they “are intended to prevent the investigation and punishment of those responsible for serious human rights violations such as torture, extrajudicial, summary or arbitrary execution and forced disappearance,” since they “violate non-derogable rights recognized by international human rights law.”⁹⁷

Developing a Viable Legal Strategy

Prosecuting the “dirty war” crimes may not be an easy job, but it should not be an impossible one either. The challenge for the Special Prosecutor’s Office is to find the most viable legal strategy—and then to make it work.

Finding a viable strategy will entail breaking new ground in legal terrain where the issues are complex. The Special Prosecutor’s Office has—to its credit—shown a willingness to be creative in developing its legal arguments. Yet these arguments have yet to be tested seriously, and they are likely to encounter resistance from courts that are wary of innovative ideas, especially those involving international human rights norms.

When it comes to making its legal strategy actually work, the Special Prosecutor’s Office will not only have to be creative, it will also have to be persuasive. It will have to convince judges that its novel legal arguments are consistent with Mexican law. It will also need to impress upon judges the weight of Mexico’s international obligations to prosecute human rights violations.

One sure way to strengthen the prosecution’s arguments is to have them be scrutinized, refined, and publicly endorsed by the country’s most experienced and knowledgeable jurists. Ideally, when the cases go to trial, it should be clear that these legal arguments reflect not only the views of the special prosecutor, but also the views of the Fox administration and the broader legal community.

The task of devising a viable legal strategy for these cases is simply too complex to leave entirely to the Special Prosecutor’s Office. What is needed instead is a collective effort by the government’s top legal experts and the country’s most experienced and influential jurists.

To that end, the president should 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 should consist of distinguished jurists, as well as lawyers representing relevant private and state institutions, including the Foreign and Interior Ministries, the PGR, the PGJM, the CNDH and, of course, the Special Prosecutor’s Office. The aim of this group should 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.

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 state. But, by allowing the special prosecutor to falter or fail alone, the government risks perpetuating the underlying problem that created the need for a special initiative in the first place: the failure of these institutions to assume their responsibility for promoting accountability in human rights cases. It risks, in other words, reaffirming the worst practices of a justice system that allowed the most serious human rights violations to go unpunished for decades.

In addition to pooling legal expertise, therefore, this commission would give the diverse institutions of the Mexican state an opportunity to take responsibility for—and thereby begin to resolve—a problem that is, ultimately, not the special prosecutor’s, but rather their own. By joining forces to strengthen the Special Prosecutor’s Office, these state institutions can strengthen the justice system as a whole.

Lack of Back-up Measures

Despite the lack of concrete results in the investigations, and the skepticism that President Fox and others have expressed about the viability of prosecutions, the government appears not to have explored any new measures aimed at reinforcing the work of the special prosecutor.

Human Rights Watch believes that the investigations currently underway can achieve significant results, provided that the Special Prosecutor’s Office receives adequate resources, access to government documents, and cooperation from the military. Still, it may be necessary to consider additional measures that would strengthen the special prosecutor’s ability to obtain information.

One such additional measure would be to create incentives for suspects to testify before the special prosecutor. 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. In Mexico, this faculty has already been granted to prosecutors pursuing cases against organized crime—though with mixed results.⁹⁸ A law granting it to prosecutors in human rights cases could be modeled on the one for organized crime, addressing whatever shortcomings have limited its effectiveness to date. It would have to be designed with great care to prevent abuses—by either suspects or prosecutors. It would not be applicable to people who bore major responsibility for human rights violations, but rather to minor offenders who played a small role in crimes conceived by others.

In addition to strengthening the special prosecutor’s ability to obtain information, the government should also seek to make sure that this information is put to good use—above and beyond serving as evidence for the prosecution of individual criminals.

When it established the office, the Fox administration presented the initiative as an alternative to a truth commission, reasoning that a special prosecutor could “accomplish more than a Truth Commission, since it would not only aim to clarify what took place but rather determine responsibility and, where possible, apply legal sanctions to those who are responsible.”⁹⁹ The emphasis on prosecution here was not presented as an alternative to the documentation work associated with a truth commission—but rather as a crucial addition to it.

Currently, however, there is no clear strategy for the Special Prosecutor’s Office to fulfill this truth-telling role. The documentation center of the Special Prosecutor’s Office has been developing plans to establish a “library,” where the general public will be able to consult documents that the office has collected in the course of its investigations. But it is not yet clear where this library will be located and how it will be sustained once the office is no longer running.¹⁰⁰ And, while this initiative could be an important source of information for victims, relatives, and independent researchers, it is unlikely to benefit the many people who would have difficulty accessing the library.

More will clearly be needed to ensure that the information gathered by the Special Prosecutor’s Office is disseminated to victims, victims’ relatives, and the general public. This might require taking steps to make sure the office—or possibly its Support Committee—has the necessary resources, personnel, and training to elaborate a authoritative report on the abuses under investigation. It may also mean reconsidering the decision not to create a truth commission.¹⁰¹

In this respect, it is important to keep in mind that Mexico’s obligation under international law is not only prosecute the 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.