Uniform Impunity

Mexico's Misuse of Military Justice to Prosecute Abuses in Counternarcotics and Public Security Operations

 

Glossary

 

CNDH   National Human Rights Commission (Comisión Nacional de los Derechos Humanos)

IACHR   Inter-American Commission on Human Rights (Comisión Interamericana de Derechos Humanos)

PGJM   Military Attorney General’s Office (Procuraduría General de Justicia Militar)

PGR   Federal Attorney General’s Office (Procuraduría General de la República)

SEDENA   Ministry of Defense (Secretaría de la Defensa Nacional)

I. Executive Summary

“When one judges oneself, one always tries to find a justification. [Military officers] simply try to cover for one another.” —Widow of a young man killed by soldiers explaining her doubts about the impartiality of the military justice system

Since taking office, President Felipe Calderón has relied heavily on the armed forces to fight serious drug-related violence and organized crime. The need to improve public security is clear. Mexico is facing powerful drug cartels that are engaged in violent turf battles, an influx of sophisticated weapons, a large number of kidnappings and executions in several Mexican states, and shocking forms of violence including beheadings. The competition and fighting among powerful cartels, as well as shootouts between cartel members and law enforcement agents, have resulted in the deaths of thousands of civilians, police, and members of the military. The numbers of victims have risen significantly since 2006, with the death toll reaching an estimated 6,000 in 2008.

Mexico has used its armed forces in counternarcotics and counterinsurgency operations for decades. But the visibility of the armed forces in law enforcement operations has increased dramatically under the Calderón administration, which has portrayed the deployment of the army as one of its key strategies to combat drug trafficking and increase public security. Thousands of members of the military have been incorporated into the federal police force, and more than 40,000 military and police officers have been deployed throughout the country. In very violent cities, such as Ciudad Juárez and Tijuana, local governments have appointed high ranking military officers to head the police forces. The Calderón administration has stated that the use of the army is temporary, but has yet to present even a provisional plan for withdrawal of the troops.

While engaging in law enforcement activities, Mexico’s armed forces have committed serious human rights violations, including enforced disappearances, killings, torture, rapes, and arbitrary detentions. The abuses detailed in this report include an enforced disappearance, the rape of indigenous women during counterinsurgency and counternarcotics operations in Southern Mexico, the torture and arbitrary detention of environmental activists during counternarcotics operations, and several cases of torture, rape, killings, and arbitrary detentions of dozens of people during public security operations in various Mexican states in 2007 and 2008. Many victims of the abuses documented in this report had no connection to the drug trade or insurgencies.

Such horrific abuses directly undermine the goal of stopping drug-related violence and improving public security. The army is currently deployed in the areas of the country most torn by drug-related violence. It would be in the military’s best interest to act and be seen to act in a manner that is professional and respectful of civilians and human rights. When soldiers commit serious human rights crimes, they damage that image, alienating civilians and generating distrust and fear of the army in populations that otherwise are best placed to assist law enforcement efforts. The abuses also run counter to one of the main purposes that the armed forces are charged with serving in public security operations: enforcing the law and protecting members of the public—not harming them.

An important reason such abuses continue is that they go unpunished. And they go unpunished in significant part because most cases end up being investigated and prosecuted by the military itself. By allowing the military to investigate itself through a system that lacks basic safeguards to ensure independence and impartiality, Mexico is, in practice, allowing military officers involved in law enforcement activities to commit egregious human rights violations with impunity.

The Mexican military court system is failing miserably to provide justice in cases involving military abuses against civilians.  Although the opaque nature of the system and the fact that the authorities do not publicly report on the outcome of most cases obscures a complete picture of what happens in all cases, it is still evident that very few cases lead to convictions for the crimes committed.

When, in January 2009, Human Rights Watch asked senior Ministry of Defense officials for examples of serious human rights violations prosecuted by the military resulting in the conviction and imprisonment of military personnel, they said there were “many.” However, they were only able to recall one case from 1998.Despite repeated requests from Human Rights Watch, the Ministry of Defense has failed to provide a list of such cases. It also has yet to provide a copy of the decision in the 1998 case.

This report details 17 cases involving egregious crimes by soldiers against more than 70 victims, including several cases from 2007 and 2008. None of the military investigations of army abuses analyzed here has led to a criminal conviction of even a single soldier for human rights violations. A civilian investigation was conducted in one of the cases and led to the conviction of four soldiers. Something is terribly amiss in how Mexico deals with allegations of serious human rights violations by the military.

Because the military justice system is failing to hold perpetrators accountable, it is essential that such cases be moved to the civilian justice system. This conclusion is fully supported by international law. International law is clear that serious human rights abuses must be subject to effective, independent investigation and prosecution, standards that the Mexican military justice system is manifestly not meeting. Authoritative commentary on international law, including decisions by the Inter-American Court of Human Rights, frowns upon military exercise of jurisdiction in such cases because military justice systems are often opaque and rife with potential conflicts of interest, the military sitting in judgment on itself. The Mexican system is no exception: it is not structured to ensure fair outcomes and, as the record to date amply illustrates, it is not providing such outcomes.

In Mexico, 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 the secretary could remove them or otherwise sideline their careers for issuing decisions that he dislikes. Civilian review of military court decisions is very limited. To make matters worse, there is virtually no public scrutiny of, or access to information about, what actually happens during military investigations, prosecutions, and trials, which can take years.

These structural flaws are borne out in practice. The Mexican Ministry of Defense limits excessively and without reasonable justification information the public’s access to basic information on the status of army abuse cases still pending before the military justice system, making it extremely difficult to know with certainty to what extent members of the armed forces are, in fact, being held accountable. In many cases, witnesses and victims are reluctant to testify or participate, afraid of the future consequences of speaking about military abuses in front of military officials. Available information indicates that the likelihood of obtaining justice in such cases in the military justice system is very slim.

As noted above, none of the military investigations of army abuses analyzed in this report have led to a criminal conviction on human rights charges. In older cases, military investigations led to impunity. And in more recent cases of 2007 and 2008, the military criminal investigations have either been closed, or are being conducted in a manner that is likely to lead to impunity. Military prosecutors have, in several cases, closed investigations for lack of evidence in reliance on soldiers’ testimony, ignoring independent, credible evidence that abuses in fact occurred. While the military has at times provided monetary compensation to victims, such compensation does not make up for the lack of accountability in these cases.

Despite these compelling facts, the military has persisted in invoking the Code of Military Justice and a strained constitutional interpretation to justify continuing to investigate the cases. Civilian prosecutors have routinely accepted the military’s jurisdiction grab with hardly a fight. This must end or impunity will continue to prevail, ultimately undercutting the success of the effort to curb drug violence and protect public security.

As detailed below, the military’s main argument as to why it has jurisdiction in cases involving serious human rights violations against civilian victims is a constitutional provision that allows for military jurisdiction for “crimes and faults against military discipline.” A key problem is that 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.” The military has interpreted this to mean that even egregious crimes such as rape and torture should be heard before military courts so long as the crimes are connected to a breach of military discipline.

But Mexico’s Constitution and the Mexican Supreme Court do not prescribe this outcome. On the contrary, the text of the Constitution, its interpretation by constitutional law experts, and a recent Supreme Court decision favor civilian jurisdiction in such cases. Indeed, the military’s practice should have been brought to an end by a 2005 Supreme Court ruling that is binding on all judicial authorities, including military ones. In its decision, the court limited the scope of the provision in the Code of Military Justice by defining “service” as “performing the inherent activities of the position that [he or she] is carrying out.” While the court did not explicitly state that all military abuses against civilians should be sent to civilian prosecutors and courts, serious abuses such as rape and torture clearly cannot be considered “inherent activities” of the military.

The issue in Mexico is not the Constitution. It is the political will to ensure that cases of army abuses against civilians are heard where they belong: in civilian courts where the requisite of independence and public scrutiny help secure justice for the victims. 

Note on Methodology

This report’s findings are based on extensive interviews conducted during four research missions to Mexico City and Coahuila state in September 2008, November 2008, and January 2009, as well as prior and subsequent interviews by phone and email. Human Rights Watch carried out interviews and meetings with Supreme Court justices, representatives from local nongovernmental organizations, lawyers, journalists, scholars, state attorney generals, and leading members of Mexican civil society. In January 2009, the Ministry of Foreign Affairs organized a series of meetings for Human Rights Watch with senior government officials, including the military’s attorney general, the head of the human rights office at the Ministry of Defense, and representatives from the federal Attorney General’s Office, the Ministry of Foreign Affairs, the Ministry of Public Security, and the Ministry of the Interior.

The findings are also based on official responses to over 40 formal information requests that Human Rights Watch sent to the Ministry of Defense and the National Human Rights Commission (Comisión Nacional de los Derechos Humanos, CNDH) through Mexico’s federal access to information law and its implementing regulations. Human Rights Watch requested information on the status of military investigations into army abuses documented by the CNDH, as well as copies of important documents that the CNDH cited as evidence in its reports documenting human rights violations.

The findings also draw upon the testimony of victims and relatives of victims of military abuses. Given the difficulty of gaining access to victims and the fact that many are understandably reluctant to testify repeatedly to what were often traumatic experiences, Human Rights Watch has also relied on official documentation that includes direct victim testimony. For example, Human Rights Watch reviewed documentation submitted by nongovernmental organizations representing victims to the Inter-American Commission on Human Rights (IACHR), listened to audio testimony given by victims before the commission, and analyzed the testimony that victims gave before prosecutors, which the CNDH cited in its reports. For this report, Human Rights Watch directly interviewed four victims of army abuse or members of their families, working closely with their legal representatives, and also drew on interviews we conducted with several Atoyac de Álvarez residents for a previous Human Rights Watch report.

Given the opaqueness of the military justice system, it is impossible to obtain complete information on the number, status, and outcomes of cases of human rights violations committed by the military against civilians that were investigated and tried by military courts. This report focuses on 17 cases that were either presented before the Inter-American Commission on Human Rights or documented by the CNDH and “accepted” by the Ministry of Defense. When the Ministry of Defense “accepted” the CNDH reports, it committed itself to, among other things, investigating the abuses and sanctioning those responsible.[1] We have documented the cases and the military investigations through the interviews described above, as well as through a variety of official documents that were part of the IACHR or CNDH files, judicial rulings, sections of civilian and military judicial files, and reports by the IACHR and the CNDH. Human Rights Watch also interviewed senior government officials, who described their policies on the use of military jurisdiction to investigate and prosecute cases alleging military abuses against civilians. The officials, however, refused to discuss any of the cases documented in this report.

Recommendations

To President Calderón

When the Calderón administration adopted its “National Human Rights Program 2008-2012” in August 2008, it said it would promote reforms to ensure that the military justice system complied with Mexico’s international human rights obligations. Two months earlier, the Congress had passed a comprehensive constitutional reform aimed at overhauling Mexico’s dysfunctional criminal justice system, including the military justice system. The reform included basic due process guarantees in the Constitution and required the adoption of an adversarial justice system with oral hearings.

To implement the constitutional requirements, as well as to follow through on his own stated commitment to strengthening the justice system and the rule of law in Mexico, President Calderón, as head of the armed forces, should present a proposal to Congress to amend the military justice system. Specifically, the proposal should:

• Modify article 57 (II) of the Code of Military Justice so that it explicitly states that at least cases of alleged serious human rights violations committed by members of the armed forces against civilians, including enforced disappearances, torture, killings, arbitrary detentions, and rapes, may not be prosecuted by the military justice system and must be immediately sent to civilian state or federal prosecutors.
• Instruct military authorities to cooperate fully with civilian prosecutors in the investigation and prosecution of military abuses against civilians.

• Ensure that military judges and magistrates have security of tenure by establishing a specific period of time during which they will serve in their posts and clear reasons and mechanisms for their removal.
• Ensure that decisions adopted by military tribunals are subject to comprehensive review by civilian authorities by, for example, appointing independent civilian judges to the Supreme Military Tribunal, or allowing for substantive review of military decisions by federal courts.

While the Congress discusses and adopts these legislative measures, President Calderón should instruct the Secretary of Defense to ensure that:

• Military prosecutors and judges do not assert jurisdiction over cases alleging serious human rights abuses. They should, as well, be directed to immediately send existing relevant case files to state and federal prosecutors who should conduct the investigations. Once the cases are under civilian jurisdiction, military authorities should fully cooperate with the investigations.
• The Ministry of Defense increases the transparency of proceedings within the military justice system, fully implementing the federal law on transparency and Mexico’s obligations under international law. Among other things, it should provide basic information to the public on the status of cases involving civilians; make it easy to obtain information on upcoming public hearings via the Ministry of Defense website; and facilitate public access to military installations where military cases are heard.

Finally, specifically in light of the crime of enforced disappearances, President Calderón should present a proposal to the Senate to withdraw the reservation the government of Mexico made when ratifying the Inter-American Convention on Forced Disappearance of Persons in 2002, and to immediately recognize the competence of the Committee on Enforced Disappearances established by the International Convention for the Protection of All Persons from Enforced Disappearance, which Mexico ratified in 2008.

Although the Inter-American Convention states that individuals accused of carrying out enforced disappearances should be tried by ordinary courts “to the exclusion of all other special jurisdictions, particularly military jurisdictions,” Mexico stated that its military justice system may prosecute and investigate crimes if members of the military commit them while on duty. Although the validity of this reservation has not yet been studied by international bodies, Human Rights Watch believes it contradicts the object and purpose of the treaty.

In relation to the International Convention for the Protection of All Persons from Enforced Disappearance, the Committee on Enforced Disappearances was established to receive and examine communications submitted by the victims of enforced disappearances or their families or representatives, but Mexico failed to recognize its competence at the time of ratification.

To the Federal Attorney General

The federal Attorney General’s Office facilitates military jurisdiction by “automatically” sending all cases in which an active-duty member of the military is accused of committing a crime to military prosecutors.

To promote accountability for army personnel who violate the rights of civilians, the federal attorney general should instruct federal prosecutors to only send military prosecutors cases involving breaches of military discipline. All cases of alleged serious human rights abuses against civilians should be either investigated by federal prosecutors (if they involve the alleged commission of a federal crime) or turned over to state authorities (if they involve the commission of a state crime).

 

II. Mexico’s Laws on Military Justice

The Mexican military routinely asserts jurisdiction over cases involving allegations of serious violations of the rights of civilians. But Mexico’s Constitution and the Mexican Supreme Court do not require this outcome. On the contrary, the text of the Constitution, its interpretation by constitutional law experts, and a recent and binding Supreme Court decision militate in favor of civilian jurisdiction in such cases. And, in fact, civilian authorities have successfully prosecuted military abuses, as attested to by the Castaños case, detailed in chapter V of this report. 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.

The assertion of military jurisdiction in these cases is problematic because of a built-in conflict of interest: the military is sitting in judgment on itself, and the Mexican military justice system is not structured to address alleged violations of the rights of civilians independently and impartially. The secretary of defense wields both executive and judicial power over the armed forces. Military judges have little job security and may fear that the secretary will remove them or otherwise sideline their careers for issuing decisions that he dislikes. Civilian review of military court decisions is very limited. To make matters worse, there is virtually no public scrutiny of, or access to information about, what actually happens during military investigations, prosecutions, and trials, which can take years.

Overview of the Military Justice System

The military justice system consists of the Military Attorney General’s Office (Procuraduría General de Justicia Militar, PGJM), the military’s Public Defense Office, and military judicial bodies, which include judges, ordinary and extraordinary courts-martial, and the Supreme Military Tribunal (Supremo Tribunal Militar, STM).[2]

The PGJM is charged with investigating all cases that enter the military justice system. A military prosecutor may press charges (ejercitar la acción penal) against a member of the military or he may close the investigation and send it to the archives if there is not enough evidence to charge the accused with a crime—a decision that must be approved by the military attorney general.[3] Throughout the investigation and judicial process, a military public defender or a private lawyer, who can be a civilian, defends the accused.[4]

First instance tribunals may consist of military judges or “ordinary courts-martial,” which are collegiate bodies that determine if the accused is guilty but do not set the sentences.[5] Military judges carry out all procedural steps of the judicial investigation in every case.[6] If a military prosecutor accuses a member of the military of a crime or offense that is punishable with a sentence of two or more years in prison, the judge must ask his superior to convene an ordinary court-martial.[7]

Once the prosecutor has pressed charges, a military judge does a preliminary analysis of available evidence to decide whether there should be a judicial investigation.[8] If he thinks there is enough evidence, he must issue an arrest warrant (auto de formal prisión).[9]

The judge then conducts the investigation (instrucción) through written and oral proceedings. The written submissions are not public, but the oral proceedings include hearings that are open to the public.[10] However, in practice, access to military installations where these hearings take place is difficult.[11] Based on the evidence and arguments presented by the prosecutor and defender, the judge determines whether it is necessary to convene a court-martial. If he deems it is not, the judge will directly issue the ruling deciding the case.[12]

If an ordinary court-martial is convened, its members carry out a series of public and oral hearings during which they can review all the evidence that was previously submitted to the judge, and can accept new evidence if the president considers it necessary.[13] In the open hearings, the court-martial members cross-examine witnesses, and the accused may directly address the court-martial.[14] The court-martial then deliberates in closed sessions to decide on the culpability of the accused.[15] Based on the court-martial’s decision, the judge will issue the ruling and determine the appropriate sentence.[16]

Military judges’ decisions may be appealed to the Supreme Military Tribunal, which can review legal as well as factual issues.[17] That tribunal’s decisions are subject only to very limited review by civilian courts, as described below.

Applicability of Military Jurisdiction

The Mexican Constitution allows for military jurisdiction only for “crimes and faults against military discipline.”[18] This provision makes sense and is consistent with international law, but only so long as breaches of military discipline are not defined so broadly that they include serious criminal acts against civilians, including rape, enforced disappearances, and related abuses. A key problem in Mexico is that 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.”[19]

Based on this broad definition, the Mexican military has expanded the scope of cases it asserts a right to investigate and prosecute to include serious human rights violations committed by the military against civilians.[20] According to the head of the PGJM, the military investigates all crimes—including serious human rights violations—that are somehow connected to a breach of military discipline, because they must maintain discipline within the Armed Forces.[21] The federal Attorney General’s Office (Procuraduría General de la República, PGR) effectively supports this view by “automatically” sending all cases in which an active-duty member of the military is accused of committing a crime to the PGJM.[22] As this report documents in chapters III and IV, the military has been allowed to initiate criminal investigations into even egregious abuses.

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.[23] 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.”[24] 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.[25] The Constitution states that “under no cause and for no circumstance may military courts extend their jurisdiction over persons which are not members of the Armed Forces” and that “when a crime or a fault involves a civilian, the case shall be brought before the competent civil authority.”[26] While the language seems clear (and prominent constitutional law experts believe it to be so), the Supreme Court has equivocated. It has ruled that civilians who commit crimes must always be tried by civilian courts, but has not said the same when it comes to cases in which the civilian is the victim rather than the perpetrator.[27] Indeed, the court has occasionally issued non-binding rulings allowing military courts to investigate cases involving civilian victims.[28]

Perhaps the best evidence that it is possible for military abuses in Mexico to be investigated by civilians is that, in fact, it has happened. This report examines in detail in chapter V a case in which soldiers who raped and sexually abused women in Castaños, state of Coahuila, were prosecuted by civilian prosecutors and sentenced by a civilian judge. The Coahuila state attorney general takes the view that federal prosecutors should investigate a case if a military official commits a crime against a civilian while on duty, given that soldiers are federal officials; state prosecutors should do so if a military official commits a crime against a civilian while off duty; and military prosecutors should only investigate cases in which soldiers who are on duty commit offenses strictly against military discipline.[29] Moreover, the government of Mexico has agreed to send specific cases of military abuses that had originally been investigated by military prosecutors to the civilian justice system after the victims and their families went to the Inter-American Commission on Human Rights (IACHR).[30]

Even if the Code of Military Justice suffered from some ambiguity regarding when military jurisdiction is applicable, it should be interpreted in light of Mexico’s international obligations, which are clear.[31] The Mexican Supreme Court has ruled twice that Mexico is bound by its international obligations and that the provisions of treaties ratified by Mexico take precedence over federal and state statutory law (but not over provisions of the Constitution).[32]Therefore, if in doubt, courts must adopt an interpretation of federal and state laws that is compatible with international law, particularly in cases involving human rights.[33]

Structural Deficiencies

The military justice system lacks the necessary safeguards to ensure judicial independence and impartiality, reliable investigations, and accountability.

The Military as Judge in Its Own Cause

The military justice system is not part of the country’s judiciary. The secretary of defense, a military officer appointed by the president, has both executive and judicial powers within the armed forces.

The secretary of defense is charged with directing the armed forces.[34]Soldiers must abide by due obedience rules.[35]And because of the military’s command structure, the secretary of defense is ultimately responsible for soldiers’ official actions.[36]

The secretary of defense also directs the military justice system.[37] The secretary appoints all military prosecutors, public defenders, and judges, who must all be active members of the military and are hierarchically below (and must respond to) the secretary.[38]The secretary also has the power to order a military prosecutor to close an investigation, and to issue military pardons when military courts convict soldiers.[39]

Lack of Security of Tenure

Military judges and magistrates do not have security of tenure. The Code of Military Justice does not set a time frame for the appointment of military judges and magistrates. According to senior officials of the Ministry of Defense (Secretaría de la Defensa Nacional, SEDENA), judges and magistrates are, in practice, subject to a “high level of rotation” and usually remain in their posts between one and three years.[40]

Judges and magistrates are subject to the same administrative personnel policies as the rest of the members of the Armed Forces, and may thus be removed “in accordance with the current needs of SEDENA.”[41] And while in the federal and state civilian justice systems there are independent bodies, called judiciary councils (consejos de la judicatura), in charge of sanctioning judges, the Supreme Military Tribunal is in charge of this task within the military justice system.[42]

Under these circumstances, military judges work knowing they might be removed if they issue decisions or rulings that the secretary of defense dislikes.

Limited Civilian Oversight

There is very limited civilian judicial review of decisions adopted by military prosecutors and courts. The military officer accused of committing a crime may request such a review, but is unlikely to do so in cases of grave human rights abuses, and will certainly not challenge decisions favoring him or her.[43] Victims of abuse—who have the clearest interest in moving cases of military abuses against civilians from military to civilian courts—have not been able to challenge the use of military jurisdiction.[44] So when military prosecutors and judges assert jurisdiction over a case of military abuses against civilians, in practice there is very little that civilian officials can do to move the case to civilian courts until the case is dismissed or a verdict rendered.

Senior SEDENA officials told Human Rights Watch that federal judges usually confirm decisions by military courts, arguing that this is a clear indication that the military justice system works.[45] But this argument fails to take into account that federal courts are usually not reviewing the question of whether there should be military jurisdiction in the first place.

In theory, a civilian judge could ask the Supreme Court to decide which court has jurisdiction if both civilian and military courts claim jurisdiction over a case. But this has not happened in recent years because civilian prosecutors routinely send cases to their military counterparts, preventing civilian judges—who do not even know about the cases—from claiming jurisdiction over cases in which serious human rights violations are alleged.[46]

The only remedy available to civilian victims is to request an injunction (amparo). But this remedy is only available in limited circumstances, such as when a military prosecutor closes an investigation or decides not to press charges against a member of the military accused of a human rights violation. And there is nothing the victim can do until the prosecutor formally closes the case, which can take years. In any case, federal courts cannot overturn a military prosecutor’s decision; they can only ask military prosecutors to do their job right. The only way to ensure that military prosecutors comply with such a ruling is to file another request for an injunction, which will once again be sent back to military courts.

Finally, there is no real way to challenge, in civilian court, a Supreme Military Tribunal’s ruling acquitting the accused. Neither military prosecutors nor victims may appeal such a decision.[47] Only the accused could file an injunction in such a case and he or she would be highly unlikely to challenge a decision benefiting him or her.[48]

Limited Transparency

The general public has no way of accessing substantive information about military investigations and prosecutions of military abuses against civilians until there is a final ruling, and there is no way of knowing how long that will take.

The military justice system is mostly closed to the public.[49] Only those who are formally parties to the process—prosecutors, public defenders, the accused, and the victim if he or she decides to cooperate with prosecutors—have access to complete information on the case.[50] In theory, the public can obtain detailed information on the status of cases through victims or their legal representatives, but most victims deeply distrust the military justice system and in practice participate minimally, if at all, in the military proceedings.[51] Indeed, as several cases documented in this report show, many victims and members of civil society organizations distrust military courts and do not want to “legitimize” the process by being part of it.

Military judges and ordinary courts-martial in theory hold “public” hearings, but there is no easily accessible information available on upcoming hearings, which makes it all but impossible for ordinary citizens and journalists to attend. There is no information available on SEDENA’s website as to which cases will be heard in public hearings, nor the dates and times when they will take place. Human Rights Watch called six SEDENA offices—including the PGJM, the Office to Assist Citizens (Oficina de Atención Ciudadana), military courts, and SEDENA’s human rights office—and no one provided specific dates and times of upcoming public hearings.[52]

SEDENA also applies confidentiality norms in a blanket fashion, denying access to meaningful information on the status of investigations into military abuses against civilians, even in the most well known cases. Human Rights Watch submitted 13 information requests to SEDENA on the status of several investigations into egregious human rights abuses documented by the CNDH in recent years. In its responses, SEDENA only provided information on whether an investigation was still open or had been closed. SEDENA provided no further information on the status of open investigations, arguing they are confidential, and refusing to provide even the most basic information, such as the types of crimes being investigated.[53] In some cases, SEDENA even failed to provide information it had provided to the CNDH, and which the CNDH had published in its annual report.[54] (The CNDH itself also refused to grant Human Rights Watch access to information it has on the status of military investigations into these cases.)[55]

Finally, it is impossible to know when the public will learn more about the military investigations and prosecutions.[56] According to senior officials, SEDENA considers information on any case confidential until there is a final judicial ruling that is not subject to any appeal, and they have an “absolute prohibition” on providing information until then.[57]

III. A Pattern of Impunity

Military investigations into grave human rights abuses committed by the military over the past few decades have routinely failed to hold perpetrators accountable, contributing to a culture of impunity. When, in January 2009, Human Rights Watch asked senior SEDENA officials for examples of cases of serious human rights violations committed by the military that were dealt with by military courts and led to convictions, they said there were “many.” However, they were only able to recall one case from 1998.[58] Despite repeated requests from Human Rights Watch, SEDENA has failed to provide a list of such cases. It also has yet to provide a copy of the decision in the 1998 case.

The Mexican military is responsible for the vast majority of the abuses committed during the country’s “dirty war” in the 1960’s and 1970’s, including the torture and enforced disappearance of hundreds of civilians. But no member of the military has ever been convicted for these crimes.

An important reason for this impunity is that the Mexican military stonewalled civilian investigators and interfered with prosecutions by pressing charges in military courts against members of the military for the same crimes that federal prosecutors were handling. If the defendants were acquitted in military courts, they became immune from prosecution in civilian courts. Also, while SEDENA has declassified important documents from the “dirty war” era, it has done virtually nothing to help civilian investigators understand or locate evidence within the released files, or obtain information that appears to be absent from those files.[59]

A similar pattern is evident in military investigations into abuses committed during other major public security operations in the Mexican countryside. These include the use of the army to respond to the 1994 armed uprising of the Zapatista National Liberation Army (Ejército Zapatista de Liberación Nacional, EZLN), a guerrilla organization in the southern state of Chiapas, and government attempts to combat drug trafficking in Guerrero since the 1980’s. Military prosecutors investigating abuses committed in these two states—including torture, arbitrary detentions, and rapes—relied heavily on soldiers’ version of events, and failed to seriously consider the victims’ testimonies and other independent sources documenting the abuses. The result, not surprisingly, was closed investigations and impunity.

Enforced Disappearances during the “Dirty War”

The “Disappearance” of Rosendo Radilla

Rosendo Radilla Pacheco was detained by soldiers on August 25, 1974, when he was traveling by bus with his 11-year-old son in the state of Guerrero. When the bus stopped for a second time at a military checkpoint, soldiers ordered passengers to get off. After three members of the military checked the bus and the passengers’ belongings, they allowed everyone to return to their seats but told Rosendo that he was being detained for “composing corridos,” a type of popular Mexican music. Rosendo asked his son, who was allowed to go, to inform his family that he had been detained by the military.

Rosendo was last seen in military installations in Atoyac de Álvarez, Guerrero, in 1974. According to witnesses, soldiers blindfolded him and tied his hands, tortured and threatened him, telling him he would be “thrown to the water as food for the fish.”[60]

Rosendo’s whereabouts remain unknown.

The Military Investigation

“It has been [over] 30 years without an answer… I need to know what happened to him,” said Tita Radilla Martínez, one of Rosendo’s daughters, with tears in her eyes. Her experience with the Mexican military justice system has led her to conclude that “so long as these cases remain with military prosecutors, nothing will be done ... We should not have to go to a military court.”[61]

The first official recognition that Rosendo had been “disappeared” came in 2001, more than 10 years after the Radilla family had asked the CNDH to look into the case.[62] The CNDH examined 532 cases and issued a non-binding report in 2001 concluding that there was sufficient evidence to establish that at least 275 individuals—including Rosendo Radilla—had been arrested, tortured, and “disappeared” by state forces during the “dirty war.” (It did not rule out the possibility that the other 257 individuals had also been “disappeared” during that time.)[63]

Civilian prosecutors only began investigating Rosendo’s case when, following the CNDH’s intervention, in November 2001 the government created a federal special prosecutor’s office to investigate and prosecute the “dirty war” crimes Follow.[64]Until the commission’s report, there had been no serious criminal investigations, despite the Radilla family’s repeated requests that authorities initiate them.[65]

But the civilian investigations ended up in military courts. The special prosecutor filed “abduction” charges against General Francisco Quirós Hermosillo in August 2005. A civilian judge issued an arrest warrant, but then turned the case over to the military justice system, arguing Quirós Hermosillo was a military official and was accused of an act that he committed while on duty. The military judge that received the case accepted jurisdiction, but the military prosecutor who had to investigate it actually sought to return it to civilian authorities, arguing that he did not have jurisdiction to evaluate the retired general for these acts.[66] But in October 2005 a federal civilian court ruled once again that the case did in fact belong within the military justice system.[67]

The Radilla family unsuccessfully challenged the use of the military justice system to investigate and prosecute Rosendo’s enforced disappearance. In September 2005 they presented an injunction (amparo) requesting that the case not be sent to military courts. The first instance judge rejected the request, arguing that Mexican law only gives victims of abuse standing to present injunctions in very specific circumstances, which do not include challenging the decision regarding which justice system should hear a case. A higher court confirmed this ruling in November 2005.[68]

Quirós Hermosillo was never tried nor convicted. In January 2006 a military judge determined there was no evidence to start investigating his criminal responsibility and set him free. Military prosecutors appealed the decision, which was upheld by the Supreme Military Tribunal. After the military prosecutors presented new evidence, another military judge issued a second arrest warrant, and in October 2006 Quirós Hermosillo was formally accused of illegally detaining Rosendo Radilla. However, the military judge closed the case in November 2006, after Quirós Hermosillo had died.[69]

This case is now pending before the Inter-American Court on Human Rights (IACHR), which has the power to issue a binding decision regarding Mexico’s international responsibility for the detention, torture, and subsequent “disappearance” of Rosendo Radilla, as well as on the state’s failure to hold those responsible accountable.[70]

Undermining Accountability

When the military insists on carrying out these investigations, it effectively blocks any possibility that members of the military will be held accountable in civilian courts. If the military trials end in acquittals, a subsequent prosecution of these officers by civilians is barred under the principle of non bis in idem—the principle, known as “double jeopardy” in Anglo-American jurisdictions, 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. As a result, the PGJM is unable to obtain evidence that may be necessary to secure convictions. The main reason for the victims’ refusal appears to be fear of the military. 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.[71] Another woman who refused to testify explained that she could not believe that the military had any intention of conducting a serious investigation. “They ignored us back then,” she said, “why would it be different now?”[72] 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.[73] Another woman asked rhetorically, “How am I going to go to the PGJM when I’m denouncing an army general?”[74]

The Conflict in Chiapas

The Detention, Torture, and Rape of the González Pérez Sisters

On June 4, 1994, approximately 10 members of the military arbitrarily detained Ana, Beatriz, and Celia Pérez—who were then respectively 20, 18, and 16 years old—and their mother, Delia Pérez de González, in the municipality of Altamirano, Chiapas, as they were returning from a nearby town where they sold their agricultural products.

The three sisters, who were members of the Tzeltal ethnic group and spoke little Spanish, were taken to a windowless one-room house where soldiers beat and repeatedly raped them while attempting to force them to confess they were members of the EZLN. A thorough medical examination showed that the three women had been sexually abused and had suffered severe physical and psychological harm as a consequence of these acts.[75] Their mother was forced to stay outside the house during the rapes.

According to the oldest sister’s testimony, a soldier threw the three women onto the floor and hit them until “they could no longer defend themselves.” While one soldier held her and took her clothes and underwear off, another man raped her. She testified she “felt great pain and felt as though [she] was dying and then passed out.” When she regained consciousness, another soldier was on top of her. She tried to scream but the man pushed a handkerchief into her mouth and covered her eyes with a piece of cloth. She recalled that throughout the two hours in that room, the soldiers were laughing and saying that the Zapatistas were “delicious.”[76] After the rapes, a military official threatened the four women saying that if they reported the incident they would be detained again, imprisoned, and maybe killed.[77]

As a consequence of the humiliation and the stigmatization created by these abuses, the González Pérez sisters and their mother left their community.[78]

The Military Investigation

Three days after the González Pérez sisters reported the rapes to the PGR, the PGR turned the investigation over to military prosecutors, arguing it did not have jurisdiction to investigate it.[79]

A year later, the military closed the case. The military case file includes statements provided by several individuals who attest to the “good conduct” of the soldiers and deny that the rapes occurred, but it completely ignores the gynecological exam submitted by the González Pérez sisters to the PGR, as well as their testimonies. In fact, military prosecutors ordered another gynecological exam. When the sisters refused, the prosecutors closed the case in September 1995, arguing that there was “lack of interest of the victims and their representatives.”[80]

The González Pérez sisters took their case to the IACHR, which ruled in April 2001 that the Mexican government was responsible for the arbitrary detention, torture, and rape of the sisters, as well as for not conducting a thorough, prompt, and impartial investigation into what had happened.[81]

The Mexican government initially tried to justify using the military justice system to investigate and prosecute this case. Government representatives argued before the IACHR that this case had to be investigated by military prosecutors because the armed forces were carrying out public security activities in Chiapas and the soldiers were “on duty and never left the location, since the place where the alleged victims were taken for interrogation was within the radius of the area assigned for the performance of the activities.”[82]

In 2008 government officials and the Comisión Mexicana de Defensa y Promoción de los Derechos Humanos (CMDPDH), representing the victims, signed an agreement before the IACHR in which the CMDPDH agreed to work with military prosecutors to help them carry out three necessary steps within the military investigation, with the purpose of sending the case to civilian prosecutors.[83] Fourteen years after the rapes, the case appears finally to be heading to a civilian court.

Militarization of Guerrero

Illegal Detention and Torture of Environmentalist Peasants

On May 2, 1999, following a raid in Pizotla—a small village 10 hours by foot from the nearest road in the mountains of western Guerrero—soldiers detained Rodolfo Montiel and Teodoro Cabrera, two peasant leaders involved in environmental activism.[84]

The military held them illegally for two days. On the morning of May 4 a helicopter took them to a military base in the town of Ciudad Altamirano, Guerrero, where they were kept for at least the rest of that day, before being turned over to the civilian authorities.[85]

When the soldiers finally presented them before civilian authorities, Montiel and Cabrera confessed to having been caught “in fraganti” with the illegal drugs and weapons that the soldiers claimed to have found on them. However, they later recanted these confessions before a judge, claiming they had been subjected to torture both in Pizotla and at the army base. The torture, they alleged, included beatings, electrical shocks, pulling their testicles, and shining a light into their eyes. The CNDH eventually found that the soldiers had planted at least some of the evidence that the two men later confessed to possessing, and concluded that both Montiel and Cabrera had been subjected to arbitrary detention and torture.[86]

A judge issued a guilty verdict against both men on drugs and weapons charges in August 2000.[87] Despite highly questionable assertions in the testimony provided by the soldiers who detained the two men, their version of events was granted the “presumption of good faith.”[88] Despite serious contradictions in the self-incriminating statements by the defendants, these initial confessions were given greater weight than their later statements. And despite evidence of torture documented by Physicians for Human Rights-Denmark, the judge chose to rely on initial findings by the prosecutor’s office, which reported finding no signs of recent physical abuse.[89]

The Military Investigation

A federal prosecutor initiated an investigation into the torture allegations in October 1999, but the following month ceded jurisdiction to the PGJM.[90]

Montiel and Cabrera attempted—unsuccessfully—to cooperate with the PGJM. They repeatedly requested authorization to cooperate with prosecutors in the investigation (as “coadyuvantes”), and offered evidence for military authorities to take into consideration.[91] The two men also asked military prosecutors to send the case to civilian courts, arguing that the military courts lacked independence and impartiality to resolve the case.[92] According to the Centro Prodh, the nongovernmental organization that legally represented Montiel and Cabrera, they were never allowed to cooperate with the PGJM. In fact, they only learned what had happened with the military investigation in 2007 through information obtained from the IACHR.[93]

The PGJM closed the investigation and ordered that it be archived in November 2001, with a decision that arbitrarilydismissed the claims that Montiel and Cabrera’s rights were violated. The PGJM said it did not find evidence that Montiel and Cabrera had been arbitrarily detained, held illegally for two days, or tortured.[94] The decision sticks to the military’s version of the events and uses it to rebut the CNDH’s findings and dismiss the validity of the Physicians for Human Rights report. It completely fails to consider evidence offered by Montiel and Cabrera.

The case is now pending before the IACHR, which issued a report on the merits in November 2008.[95]At this writing, the report is not yet public.

The Rape of Inés Fernandez Ortega[96]

On March 22, 2002, 11 soldiers arrived at the house of Inés Fernandez Ortega, an indigenous woman of the Tlapanec Me'paa people in Guerrero, who was at home with her four children aged three, five, seven, and nine. Three soldiers arbitrarily entered the house, asking Inés: “Where is your husband? From where did he steal the meat that you have on your patio?” The soldiers pointed their guns at her chest, grabbed her hands and threw her violently onto the floor, shouting at her, “Are you going to talk or not?” The children fled the house in fear and went to their grandfather to ask for help.

Inés could not answer the soldiers’ questions because she does not speak Spanish, which infuriated the men. One of the soldiers grabbed her hands with his right hand, and with the other hand he removed Inés’ underwear, pulled down his pants, and raped her for approximately ten minutes. When he finished, the soldiers left, stealing the meat Inés and her family had on their patio.

After the rape, Inés has been stigmatized by members of her community. Inés continues to be afraid of the military and constantly fears that she or her children could suffer similar abuses again.

The Military Investigation

Two days after the rape, Inés lodged a formal complaint before the civilian state prosecutor’s office in Ayutla de los Libres, Guerrero, asking state prosecutors to investigate the rape and illegal entry into her home. The state prosecutor determined he was not competent to investigate the rape, the robbery, or the illegal entry into Inés’ home because “the individuals who are probably responsible [for the crimes] belong to the Mexican army.” In May 2002 he sent the case to military prosecutors.[97]

Inés unsuccessfully challenged the use of military jurisdiction in her case before Mexican courts.[98] After military prosecutors rejected her request to refrain from asserting their jurisdiction over the case, she presented an injunction (amparo) before federal courts.[99]Both a first instance judge and a higher court rejected her appeal, arguing that Inés did not have standing to challenge a decision regarding which government authority was competent to investigate a case.[100]

The PGJM formally closed the case in March 2006, arguing that there was no evidence that members of the military were responsible for the rape or the illegal entry into Inés’s home. The prosecutors based their decision on the testimony of the accused soldiers, who denied the accusations, and on testimonies of other individuals who were not present at the time that the events took place.[101]They also argued that Inés had not provided enough information to identify the person responsible for the crime and that she had not participated in the military investigation, even though the CNDH documented how military prosecutors had not adequately notified Inés of the proceedings.[102]

According to government officials, the military investigation had been limited to analyzing if soldiers had committed a breach of military discipline, and civilians are investigating the rape.[103] However, the military decision in fact goes far beyond reviewing whether there was a breach of military discipline by, for example, analyzing whether the gynecological exam performed on Inés after the rape constitutes valid evidence. In any case, the civilian investigation is not likely to yield justice for Inés because, even though Inés had reported that she had been raped by soldiers, the PGJM sent the military file to civilian authorities so they could investigate “the possible participation of civilians in the case in which Inés Fernandez Ortega was a victim of abuse.”[104]

The case is now pending before the IACHR, which issued a report on the merits in November 2008.[105]At this writing, the report is not yet public.[106]

The Rape of Valentina Rosendo Cantú[107]

On February 16, 2002, Valentina Rosendo Cantú, a 16-year-old member of the Tlapanec indigenous community in Caxitepec, Guerrero, was washing clothes in a stream near her house when eight soldiers showed up.

When she was unable to respond to the soldiers’ questions, two of them raped her. The soldiers surrounded Valentina and two of them walked up to her, asking angrily, “Where are the hooded [people]?” When she said she did not know, one soldier threatened to shoot her and, pointing his gun at her, asked her if she was from Barranca Bejuco, a nearby community. She was not. Another soldier showed her a picture and a list of names, asking her if she recognized anyone. She did not. A soldier hit Valentina in the stomach; she fell and passed out for a few minutes. When she regained consciousness, she sat down and one of the soldiers pulled her hair and violently asked her: “How come you don’t know, aren’t you from Barranca Bejuco?” Valentina explained she had only recently moved to Barranca Bejuco, after getting married. Two soldiers scratched her face, took her skirt and underwear off, and raped her, one after the other, while the other six men witnessed the rapes.

It took Valentina months to obtain adequate medical care. After the rape she got up and, practically naked, ran home. She went to a local hospital, where doctors refused to treat her saying they did not want “trouble” with the military and did not have adequate equipment. She then traveled eight hours by foot to another hospital in Ayutla, where a doctor determined she had been beaten in her abdomen, but did not provide any medicine or order the necessary lab exams. Only several months later, after her legal representatives intervened, did Valentina obtain adequate gynecological healthcare, including an operation.

After the rape, Valentina’s husband left her and she lost the support of her community as a result of the stigmatization she suffered.

The Military Investigation

On March 8, 2002, Valentina presented a formal complaint before state prosecutors in Ayutla de los Libres, Guerrero, stating she had been raped by soldiers. Two months later, the state prosecutor’s office sent the case to military prosecutors, arguing they had jurisdiction to investigate the case because the accused were members of the military.[108] (The military had already initiated an investigation into the case, based on a news article accusing soldiers of raping and beating an indigenous woman).[109]

Valentina repeatedly—and unsuccessfully—challenged the use of military jurisdiction to investigate her case. She first refused to cooperate with the military investigation, and requested that the military prosecutor refrain from asserting jurisdiction in her case.[110] Subsequently, she filed several requests for injunctions (amparos) before federal courts challenging the assertion of military jurisdiction in her case, but civilian courts rejected her claims, arguing the accused were soldiers who were “on duty” when they committed the alleged crime, which made it a case of an alleged breach of military discipline.[111]

Valentina learned in October 2007—after a public hearing before the IACHR—that the military had closed its investigation more than three years earlier, in March 2004. The military argued that it had found no evidence to prove that Valentina had been raped by soldiers.[112]

The Mexican government says it is conducting a thorough investigation at the state level. At the international hearing—and more than five years after Valentina asked state authorities to investigate the rape—the Mexican government agreed to request that military prosecutors submit the information in their files to state prosecutors so they could investigate the rape.[113] The military sent the files in January 2008, and the state prosecutors’ office reopened the investigation in May.[114] Mexican officials say that the PGR then attempted to carry out procedural steps on behalf of the state prosecutors’ office but Valentina repeatedly refused to cooperate with federal officials. They say that it is Valentina’s failure to cooperate that is impeding justice in this case.[115]

However, Tlachinollan, the nongovernmental organization representing Valentina before the IACHR, told Human Rights Watch that they believe the 2008 investigation by the state prosecutors’ office, which was reopened after years, is focused on the possible responsibility of civilians in Valentina’s rape and is not seriously investigating the soldiers. At a minimum, this case demonstrates how the military’s exercise of jurisdiction, and the lengthy delays that have accompanied it, have undermined the victim’s trust, and thus, prospects for justice.[116]

The case is now pending before the IACHR.[117]

IV. An Ongoing Practice

To this day the military justice system continues to assert jurisdiction over the most egregious abuses against civilians—including killings, torture, arbitrary detentions, and rapes—committed by the military during counternarcotics and law enforcement operations. SEDENA limits excessively and without reasonable justification basic information on the status of its investigations, so it is extremely difficult to know with certainty to what extent members of the armed forces are being held accountable. However, a review of available information about the military’s handling of well known cases from 2007 and 2008 suggests that the likelihood of obtaining justice is slim.

First, none of the military investigations analyzed in this chapter, which involve 11 cases and dozens of victims, have led to a criminal conviction. The military has closed its investigation in four cases, saying it had found no evidence to charge soldiers with any crime or that the statute of limitations had expired. The other seven cases are still pending (most of them are still officially under investigation), in some instances almost two years after the abuses took place.

Second, the limited information available about the investigations shows that they have suffered from serious problems. Military prosecutors have, for example, relied on evidence planted by soldiers to support SEDENA’s allegations that the military had detained individuals “in fraganti,” which would justify the detention. They have also failed to subject soldiers who were allegedly drunk to a timely alcohol test. Often, military prosecutors appear to have completely ignored evidence documenting the abuses, instead giving undue weight to the accounts of the military. In at least one case, the military has investigated soldiers for only minor crimes (e.g. “abuse of power”), failing to pursue an investigation for the more serious crimes that were allegedly committed. In another, victims have not participated in the investigations, mostly because the military failed to work with them.

While the military has at times provided monetary compensation to victims, such compensation does not make up for the lack of accountability in these cases.

Recent Abuses during Counternarcotics and Public Security Operations

This section analyzes how the military justice system has addressed dozens of military abuses—including killings, arbitrary detentions, torture, and rapes—committed during law enforcement and counternarcotics operations in 2007 and 2008. The principal sources for all of these cases are CNDH reports documenting the abuses, as well as evidence included in such reports. All of these cases received widespread attention in the media when the reports were made public. SEDENA “accepted” all of the CNDH’s reports, thereby committing itself to, among other things, investigate the abuses and sanction those responsible.[118]

Illegal Detention and Abuse of 36 Civilians and Rape of Four Minors

After unknown individuals attacked members of the military, killing five soldiers on May 1, 2007, hundreds of soldiers went to the municipalities of Nocupétaro, Carácuaro, and Huetamo in Michoacán state seeking the aggressors. They committed dozens of abuses, including arbitrary detentions, illegal detentions at a military base, torture, beatings, rapes, and illegal entries into homes.[119]

During the two days that followed the ambush, soldiers arbitrarily detained 36 people, including five minors, holding most of them at the military base in the 21st Military Zone for up to 84 hours.[120] They repeatedly beat the detainees, tied their hands with tape or rope, and in some cases covered their heads with a plastic bag or cloth. One of the detainees had burns on his skin, and another reported that the soldiers had pushed his head into a container with water to force him to provide information. The soldiers kept the majority of the detainees incommunicado, and held four of them with their faces and eyes covered the whole time.

Four of the people detained for over 20 hours were girls under 18 years old at the time, who testified before federal prosecutors that soldiers repeatedly beat, sexually abused, and raped them with the purpose of obtaining information about their supposed links with armed groups and drug traffickers. The girls revealed how soldiers forced them onto a helicopter, where they then threatened and sexually abused the girls. One girl said that the soldiers told them, “fucking human rights don’t exist, we will throw you in the sea and you will be food for the sharks.” Another stated that they forced her to keep her skirt up and her underwear down, while soldiers said, “fucking bitch, (…) this is what you like.” A soldier took a prayer card of the Virgin Mary that a third girl had with her, made a small ball out of it, and introduced it into her anus. According to the fourth girl, soldiers told her, “Not even the Virgin will get you out of this.” When they arrived at the military installations, they were forced to inhale a substance that made them sleepy, and awoke feeling terrible aches in their bodies, particularly in their lower abdomen. Some of the girls noticed they were spitting foam from their nose and mouth, and that a liquid was flowing out of their vagina, producing an itchy sensation.[121]

The soldiers also illegally entered over 30 homes, threatening the people inside with their guns, and stealing cash, cell phones, and jewelry.

The Military Investigation

Almost two years after the events, the PGJM is still investigating soldiers’ responsibility for the abuses. The federal prosecutor, who began investigating the case, determined on May 30, 2007, that he lacked jurisdiction and sent it to military prosecutors.[122]

Initially, the PGJM only initiated a criminal investigation into the possible rape of the four girls. Despite the evidentiary value that a victim’s testimony has in any criminal investigation into a rape, SEDENA told the CNDH that it had completed “90 percent” of the investigation, before having even obtained the testimony of two of the girls.[123] In spite of their initial testimony describing the rapes and medical evidence analyzed by the CNDH supporting their claims, the PGJM said that two of the girls had told military prosecutors that they were not willing to press charges since they had not been raped, beaten, or mistreated by members of the military.[124] As of January 2009, the PGJM is still investigating the case.[125]

It is unclear whether the PGJM is investigating the rest of the abuses, and no substantive information on the status of such investigations is available. SEDENA told Human Rights Watch in January 2009 that it had not initiated any other criminal investigation as a consequence of the abuses documented by the CNDH.[126] However, it had previously informed the CNDH that it was investigating the “beatings and alleged acts of torture.”[127] Regarding the status of that investigation, SEDENA only stated that the PGJM had conducted “40 percent” of the investigation.[128]

Illegal Detention of Eight Civilians and Torture of Four, including a Child

On May 7, 2007, soldiers from the 51st Infantry Battalion belonging to the Mixed Operations Base “Tierra Caliente” detained six men, a woman, and a child after a shootout between the military and alleged drug traffickers—which lasted over an hour and left several members of the military injured and four civilians dead—in the municipality of Apatzingán in Michoacán state. None of the detainees were involved in the shootout.[129]

When the shooting broke out, some of the detained individuals were in the area purchasing agricultural products, while others were inside their homes. The soldiers detained the eight people soon after the violence ended, and took them to military installations in the 43rd Military Zone, where the soldiers tortured four of them, including the child. The torture included beatings, kicks, placing their heads in black bags, which made it difficult for them to breathe, and forcing them to lie on the floor blindfolded, while soldiers asked “who they worked for.”

Although Mexican law states that individuals must be immediately presented before a judge, soldiers held the detainees for 15 hours in military installations, before taking them in front of a federal prosecutor. The soldiers argued that the detainees had been caught “in fraganti” and should be investigated for their responsibility in the shootout. But three days later, federal prosecutors determined there was no evidence to charge the eight people with any crime and set them free.

Other soldiers illegally entered nine homes in the area, allegedly damaging property and stealing cell phones, cameras, jewelry, and cash.

The Military Investigation

SEDENA has closed one criminal and one administrative investigation, and sent them both to its archives. On May 15, 2007, the federal prosecutor who investigated the detainees’ alleged responsibility in the shootout informed the PGJM that it should investigate the soldiers who had exceeded their functions.[130] In less than a month, the PGJM closed the only criminal investigation it had begun into a possible breach of military discipline in this case, arguing that there was no evidence that “the acts investigated by the military prosecutors’ office … constitute a criminal act.”[131] From available evidence, it is unclear whether the military investigated the detention, the torture, or both. SEDENA also sent the administrative investigation it had begun to the archives, stating that the administrative bodies had no jurisdiction to investigate probable human rights abuses.[132]

Killing of Two Women and Three Children and Wounding of Three Others

On June 1, 2007, soldiers who were stationed on the side of a road in the municipality of Sinaloa de Leyva in Sinaloa state, and were reportedly drunk and using drugs, opened fire on a truck transporting three adults and five children, killing a woman and a 3-year-old girl.[133]

SEDENA argues that the vehicle failed to stop at the soldiers’ request, and the soldiers fired their guns to defend themselves, only after they heard shots (fogonazos). According to their account, once the shooting stopped, they found two individuals dead and six injured, and they provided first aid to the injured passengers. SEDENA says they found a sack of marijuana next to the truck.

However, evidence indicates that the soldiers opened fire without justification. For example, state prosecutors found that there were no signs warning drivers that the military had a checkpoint in the area and were thus required to slow down. There is no evidence to support SEDENA’s claim that the civilian passengers had fired guns at the soldiers, but there is extensive forensic evidence demonstrating that the deaths and injuries were caused by guns fired by members of the military. Also, a soldier reported to military prosecutors that the soldiers had received orders to plant evidence (marijuana) next to the truck, which would enable them to argue they had caught the passengers “in fraganti” during the commission of a crime, and that their actions were therefore justified.

Soldiers allegedly delayed the injured passengers’ access to urgent medical care, which led to three more deaths.[134] When family members of the passengers arrived at the scene, soldiers told them that a helicopter was on its way to transport the injured people to a hospital. After waiting three hours for the helicopter, the family members decided to drive the injured passengers to the nearest hospital. During the trip they were detained by soldiers at three different check points, for a total time of nearly two hours, though they had informed the soldiers each time that they were transporting individuals in need of urgent medical care. At one location, a military vehicle escorted them at a very slow speed, further delaying their arrival at the hospital. Three passengers finally died in the cars. Red Cross ambulances then transported the three surviving, injured passengers to the nearest hospital.

In their testimonies before federal prosecutors and the CNDH, the family members who were transporting the injured passengers stated that soldiers detained them and forced them to stay all night—reportedly inside their cars with the dead bodies—on the premises of a military base. The following morning the soldiers told them that the bodies would be taken to a nearby hospital.

The Military Investigation

The PGJM is still investigating the abuses, but available information indicates that the military has conducted flawed criminal investigations. The military has paid monetary compensation to the victims.

On June 1, 2007, federal prosecutors initiated a criminal investigation, and two days later, responding to a request from military prosecutors, sent the case to the PGJM.[135] The military prosecutors pressed charges against some of the soldiers who fired at the truck, and on June 10, 2007, a military judge issued arrest warrants for 19 soldiers.[136] As of January 2009, the case was still pending before military courts.[137] An investigation into all the other abuses is also still pending.[138]

There are indications that the military’s investigation has serious flaws. Despite evidence that seven soldiers had tested positive for marijuana use, and one had tested positive for methamphetamines and cocaine, military prosecutors failed to request that all the soldiers involved be subjected to appropriate and timely testing.[139] Military prosecutors failed to thoroughly investigate the allegations that the soldiers had planted evidence. Finally, PGJM had initially only investigated the soldiers who fired at the truck (and one captain for other crimes related to the CNDH findings), and apparently only included the other abuses in the investigation after the CNDH made its report public.[140]

Soon after military judges issued the arrest warrants, SEDENA agreed to pay monetary compensation to the victims and their families.[141] SEDENA refused to provide Human Rights Watch with a copy of the agreement, arguing that since it had not yet entirely complied with the CNDH’s recommendations, the document containing the agreement was confidential.[142] However, it did give the CNDH the names of the victims receiving compensation, as well as the amount of Mexican pesos given to each person, and the CNDH published this information in its 2008 annual report.[143]

Illegal Detention and Torture of José Fausto Galvez Munguía

On June 7, 2007, José Fausto Galvez Munguía and two others were close to the U.S. border in the state of Sonora, waiting for a man who had promised to help them cross the border and travel to Phoenix, Arizona, when two Mexican Army vehicles, with personnel from the 40th Military Zone, arrived.[144]

The soldiers pointed their guns at the men, asking them who their boss was and “where the drugs” were. They tortured Galvez for four hours. When Galvez explained why they were there, a soldier kicked him in the ribs and another pulled his hair and ordered him to get into a military vehicle. The soldiers beat Galvez, threw him out of the car, and dragged him to a location where they forced him to drink an alcoholic beverage, which caused him to vomit. The soldiers inserted pieces of wood under his nails and moved them around to inflict pain, and then pulled out one of his nails.

The soldiers left Galvez lying unconscious in the countryside. When he awoke, Galvez managed to walk to a road, where a passerby picked him up and drove him to the nearest hospital.

The Military Investigation

Galvez asked a federal prosecutor in Sonora to investigate his allegations of military abuse on June 15, 2007. The federal prosecutor sent the case to the state attorney general’s office, which had already started an investigation. But on February 5, 2008, the state prosecutor determined the case should be investigated by military prosecutors. As of January 2009, the PGJM was still investigating the case.[145] SEDENA paid monetary compensation to the victim before concluding the military criminal investigation.[146]

Illegal Detention and Torture of Oscar Cornejo Tello

On June 13, 2007, Oscar Cornejo Tello was watching TV with two other people in a home in the municipality of Morelia in Michoacán state, when 15 members of the military illegally entered the house shouting, “Open the door, son of a bitch!”[147]

When Cornejo opened the door to let the soldiers in, they threw him on the floor and tortured him. The soldiers asked him if his nickname was “Chino Güenses,” and when he said it was not, they covered his head with a piece of cloth and then used it to choke him. The soldiers gave electric shocks to his testicles and kicked and beat him for approximately 30 minutes.

The soldiers took Cornejo in handcuffs to the 21st Military Zone, where he was detained for seven hours, until he was finally presented before a federal prosecutor. (SEDENA reported at the time that soldiers had detained Cornejo “in fraganti,” when he was driving a car, in which soldiers found weapons and drugs, contradicting the evidence gathered by the CNDH.)

The Military Investigation

A federal prosecutor pressed charges against Cornejo for possessing drugs and illegal firearms, but he also determined that military prosecutors should investigate the possible responsibility of members of the military in the abuse of Cornejo.[148] The PGJM started investigating the possible “abuse of power” by members of the military on July 9, 2007, and as of January 2009, the case remains at the investigation stage.[149] SEDENA has already paid monetary compensation to the victim.[150]

Torture and Death of Fausto Ernesto Murillo Flores

On August 3, 2007, soldiers detained three men in the municipality of Naco in Sonora state, but only presented two of them before the state prosecutor, accusing them of possessing illegal firearms. The body of the third man, Fausto Ernesto Murillo Flores, was found the following day on the side of a road in Sonora, showing signs of torture.[151]

According to a witness’s account, after detaining Murillo the soldiers beat him repeatedly, while asking him where they could find weapons and drugs. The witness heard that Murillo appeared to be drowning and heard the soldiers threatening to put alcohol in his nose. The witness also saw soldiers place a plastic bag over Murillo’s head. Soldiers continued to beat Murillo until, stated the witness, “suddenly he was still; he no longer complained or said anything.”

SEDENA blamed Murillo’s health conditions for his “natural” death after being detained, contradicting the witness’s account, the autopsy, the CNDH’s findings, and SEDENA’s own initial account, according to which it had only detained the two other men (and not Murillo).[152] In its second report on the case, SEDENA said that Murillo had died when he was detained, and that the cause of death was a heart attack, which was the consequence of “addiction to cocaine and tobacco, obesity, and being sedentary.” However, according to documentation—including a medical forensic evaluation—analyzed by the CNDH, Murillo’s death was likely the consequence of asphyxia.

SEDENA’s second version, that Murillo had in fact been detained and died as a consequence of his health troubles, does not explain why his body was found on the side of a road.

The Military Investigation

The day Murillo’s body was found, a state prosecutor in Sonora began investigating the homicide, but a few months later sent the case to military prosecutors, who were already investigating the case.[153] The PGJM pressed charges against six soldiers, accusing them of torturing Murillo.[154] But the military judge determined the statute of limitations on investigating the soldier’s probable responsibility for the crime of “desertion” had expired, and closed the case.[155] SEDENA informed the CNDH that it initiated another criminal investigation, but there is no information available on which crimes are being investigated or what the current status of the investigation is.[156] SEDENA paid the victim’s family monetary compensation.[157]

Illegal Detention and Torture of Jesús Picazo Gómez

On the night of August 21, 2007, five members of the 37th Infantry Battalion of Zamora in Michoacán state—who belonged to the “Mixed Operations Base Uruapan”—detained Jesús Picazo Gómez when he was leaving his aunt’s house to buy food.[158]

For over 24 hours the soldiers illegally held Picazo incommunicado in military installations. Soldiers beat and kicked him, blindfolded him, and took him to a military base in Uruapan. There the soldiers placed a cloth bag on his head, threw him onto the floor, tied his arms and feet, and poured water on his face while they hit his abdomen and asked him for names of people in his community who produced and sold drugs. Picazo spent the night naked at the base.

The following morning, Picazo was taken to another military base where soldiers continued beating and throwing him against a wall, while they showed him pictures and asked if he recognized anyone. When he said he did not, the soldiers repeatedly forced his head into a container full of water, reportedly for periods of up to three minutes, and applied electric shocks to his stomach.

It was not until 11 p.m. on the day after his detention that soldiers took Picazo before a federal prosecutor, arguing they had detained him “in fraganti” for possessing drugs and illegal firearms.[159] The prosecutor filed charges against Picazo, but the judge who heard the case ordered his immediate release, stating his detention had been illegal.

The Military Investigation

After Picazo’s release, a federal prosecutor initiated a criminal investigation into the possible responsibility of two members of the military for the abuses.[160] Three days later he sent the case to a military prosecutor, who began investigating the case on September 20, 2007.[161] Despite the existence of medical exams by civilian authorities documenting the torture, eleven months later the PGJM closed the investigation, arguing that military prosecutors did not find evidence that soldiers had committed a crime.[162] However, the military paid Picazo Gómez monetary compensation.[163]

Illegal Detention and Torture of Antonio Paniagua

At 5 a.m. on October 7, 2007, soldiers from the 37th Infantry Battalion of the Mexican Army—belonging to the Mixed Operations Base in Zamora, Michoacan—illegally entered Antonio Paniagua Esquivel’s home while he and his family were sleeping.[164]

After entering Paniagua’s home, soldiers took him out of bed, threw him on the floor and started kicking and beating him. The soldiers took Paniagua to the second floor of the house, where they forced him to lie down facing upwards, blindfolded him, stepped on his hands, placed a towel with water on top of his face making it difficult for him to breath, and applied electric shocks to his genitals.

The soldiers then kept Paniagua at a military base for two hours. Finally, they presented Paniagua before a federal prosecutor, arguing that he had been detained “in fraganti” in possession of illegal firearms.[165] By then, eight hours had passed since the illegal entry into his home.

The Military Investigation

A federal prosecutor pressed charges against Paniagua on October 12, 2007, accusing him of possessing weapons that may only be used by the armed forces. The same prosecutor determined that it was likely that members of the military had committed irregularities when they detained Paniagua, so he forwarded a copy of the investigation to the PGJM.[166] Military prosecutors closed the investigation on July 23, 2008, finding that there was no evidence that soldiers had committed any crime.[167] The military did, however, pay Paniagua monetary compensation.[168]

Death of Victor Alfonso de la Paz Ortega and Wounding of Juan Carlos Peñaloza García

On the evening of January 11, 2008, a soldier from the 12th Infantry Battalion of the Mexican Army opened fire on a car in the municipality of Huetamo in the state of Michoacán, killing 17-year-old Víctor Alfonso de la Paz Ortega.[169] When the driver, Juan Carlos Peñaloza García, 19, stopped the car after his friend had been killed, the soldiers forced him out of the vehicle, hit him with a gun, and kept him on the floor, facing downwards.

In its official response to the CNDH, SEDENA argued that a soldier shouted at the driver, asking him to stop, after the driver had failed to obey signs on the street warning drivers to reduce their speed.[170] According to SEDENA, when the driver did not stop, the soldiers were forced to react, since the man in the passenger’s seat had a gun and they feared for their lives. A soldier fired a first shot in the air and when he saw that the car did not stop, fired two shots at the vehicle’s wheels.

According to the information that the CNDH gathered when documenting the case, however, the soldier’s reaction constituted an unjustified, excessive use of force. There were no clear “warning signs” on the street that demonstrated the military was present in that area of town or that would have indicated to the driver that he needed to slow down. Authorities found a plastic gun inside the car, but since the incident occurred at night and the car had tinted windows, it would have been nearly impossible for soldiers to see if the passenger had a gun. There was no forensic evidence of shots fired from inside the vehicle. There was evidence showing that the soldier had fired only three shots and there had been no first warning shot in the air.

The Military Investigation

SEDENA is only investigating some of the documented abuses, but has already decided to provide victims and their families monetary compensation.[171] The Michoacán State Prosecutor’s Office immediately initiated a criminal investigation into de la Paz’s death and sent it to the PGR, which, in turn, sent it to military prosecutors at the PGJM’s request.[172] The PGJM initiated a criminal investigation into the probable responsibility of one soldier in the homicide of de la Paz, but failed to investigate those responsible for beating Peñaloza García.[173] As of January 2009, the PGJM was still investigating the homicide.[174]

Killing of Sergio Meza Varela and Wounding of José Antonio Barbosa Ramírez

On February 16, 2008, at least three soldiers, who wanted to stop a car in Reynosa in the state of Tamaulipas, opened fire on the vehicle without justification, killing Sergio Meza Varela and injuring José Antonio Barbosa Ramírez.[175]

Although SEDENA argued that the soldiers had opened fire to “repeal an aggression,” there does not appear to be any evidence that the men in the car had attacked the soldiers. When the state prosecutor and his staff arrived at the scene they searched the car in which Meza and Barbosa were traveling and did not find any firearms. Also, a general submitted a written document to the state prosecutor stating he had not “detected any firearm [held by] the civilians.” Finally, a test for gun residue found no evidence that either man had fired a gun immediately before the events, and there was no proof that anyone had shot from inside the car.

The Military Investigation

The Tamaulipas Attorney General’s Office initiated an investigation into the probable responsibility of the soldiers, but four days later it determined it did not have jurisdiction to analyze the case and sent it to military prosecutors. As of January 2009, the PGJM was still investigating the case.[176] SEDENA has already paid victims and their families monetary compensation.[177]

Killing of Four Civilians and Abuse and Arbitrary Detention of Four Others

At approximately 9:00 p.m. on March 26, 2008, six people were returning from a party near the community of Santiago de Caballeros, in the Badiraguato municipality of the state of Sinaloa, when a military truck began to pursue their car. Suddenly, the military truck pulled alongside the vehicle and nearly crashed into it.[178] More than a dozen soldiers opened fire from close range without any apparent justification, killing four civilians. Two soldiers were also killed, reportedly by friendly fire.[179]

The driver was shot first and lost control of the car, while the passengers began to yell that they were unarmed and pleaded with the soldiers to stop shooting.[180] But the shooting continued andfour of the passengers—including one man who was intellectually disabled —were killed.[181] Two passengers survived, but one was wounded. The soldiers also accidentally killed two of their own men who had been traveling inside the military truck.

The military found no weapons in the car, but they detained and beat the surviving passengers. Wilfredo Medina, who suffered a gunshot wound and several other injuries in the attack, said soldiers forced him and the other survivor to lie face down in the dirt with their hands on the back of their necks. When Medina moved his hand slightly to stop blood from running from a gash on his head, a soldier kicked him repeatedly in the face.[182] The soldiers also detained two other civilians who were traveling in a separate vehicle. The military forced them to lie face down in the dirt for seven hours, without any explanation as to why they were being held, and then released them without charge.[183]

At first, the military characterized the incident as a clash, rather than a one-sided attack. The day after the incident, three ranking military officers who were involved claimed that the civilian vehicle had fled, despite the military’s order to stop.  They also stated that the soldiers had opened fire only after they heard guns being fired by the victims, saying the military then “proceeded to repel the aggression.”[184] Early press reports cited official sources who described the incident as “an ambush that targeted the military as they carried out a sweep to search for drug plantations in the area” and described the victims as “four suspected assassins of the drug trade.”[185]

However, evidence that emerged from official investigations and witness accounts contradicts the military’s initial account. The two passengers who survived testified that no one in the vehicle had been carrying weapons or fired on the military vehicle.[186] This finding was confirmed by several government experts, including federal and state investigators, who found that all the bullets had been fired by the military and the civilians had been unarmed.[187] This evidence led the state prosecutor, who was reviewing the charges against the civilians for homicide and injuring soldiers, to conclude that their account of the events was more credible than the military’s, and the survivors were released.[188]

The Military Investigation    

As described in detail below, after persuading the federal prosecutor to turn over jurisdiction, the PGJM neglected to gather key pieces of evidence, raising doubts about its thoroughness and objectivity during the investigation. It also repeatedly failed to act in the interest of victims’ families, excluding them from the inquiry, denying them information about the case, and rushing them through a flawed compensation process.

Within hours of the incident, both the PGR and the PGJM had launched preliminary investigations into the events. Three days later, responding to a request from military authorities, the federal prosecutor refused to assert jurisdiction to continue investigating the case.[189] He effectively handed control over to the military courts, in spite of the fact that, by that time, preliminary investigations had proved the military officers’ initial accounts of the incident to have been fabricated.[190]

The military prosecutor charged five officers with “violence against persons causing homicide and injuries,” but conducted the investigation in a manner that raises questions about the military justice system’s neutrality and thoroughness.[191] The military did not administer drug or alcohol tests to the soldiers, despite reports from residents in the village near the incident that the soldiers involved had been drinking since early in the afternoon and that they smelled of marijuana.[192] Such tests were, however, administered to the civilian passengers.[193] No military officers were charged with abusing or arbitrarily detaining civilians. Finally, military prosecutors charged only five of the 13 soldiers who had fired their weapons during the incident.[194]

In the course of the investigation, military prosecutors made little or no effort to contact the victims’ families or collect their testimony. Initially, the family members were given no information about the incident or the preliminary investigations carried out by military or civil authorities.[195] Without information from the authorities, victims’ families were left to piece together what had happened from press accounts, which in the first several days wrongly portrayed their relatives as “hired assassins” or drug runners. “I felt totally powerless,” said one widow, “because on top of the injustice they had committed, they were dirtying [the victims’] names.”[196] At no time before charging the five officers did the military prosecutor collect testimony from the two survivors or from the families of the victims.[197] This suggests that the military relied solely on the investigation of the crime scene and testimony from the soldiers—some of whom had fabricated earlier accounts—as its sources.

One of the victims’ relatives said she believed the soldiers would receive more lenient judgments in military courts. “When one judges oneself, one always tries to find a justification,” she said.[198] She also explained her doubts about the impartiality of the military justice system by stating that, “[military officers] simply try to cover for one another.”

Family members of the victims sought, on two separate occasions, to obtain an injunction (amparo) in civilian courts challenging the use of military courts to try the killings.[199] In both cases a military judge submitted arguments defending military jurisdiction, arguing that any time a soldier commits a violation in the act of service, it “invariably” affects military discipline, which is “the spinal cord of the armed forces.”[200] The two injunctions were rejected by lower courts, which ruled that the victims did not have legal standing to present such a request.[201] The victims’ relatives have since appealed the decisions to higher courts, and have requested that Mexico’s Supreme Court hear the cases, due to the “interest” and “transcendence” of their cases.[202] The Supreme Court decided in March 2009 to look into one of the cases, but have yet to rule on the merits at this writing.[203]

As civilian courts were reviewing the requests for injunctions, the military offered the families of the victims killed a one-time opportunity to obtain compensation. But the process left the civilians little time or leeway to review the content of the proposal, challenge its conditions, or consult with their lawyers. When the families arrived at a meeting scheduled the same day by state officials, members of the military’s human rights office presented them with a pre-written compensation agreement and told them that they had until the end of the afternoon to accept or reject it. The victims’ families’ lawyer is based in Mexico City and could not attend the meeting because there was no advance notice.[204] The military representatives made clear that the offer would be their only chance to receive payment. “We felt pressured into deciding that day,” one of the family members who attended the meeting told Human Rights Watch.[205] One of the terms of the agreement was that, by signing, family members would relinquish the right to pursue any legal action seeking further compensation for their losses. In the end, due in large part to financial burdens left by the loss of a wage earner and bearing funeral costs, the families decided to sign the agreements.[206]

Not only did the agreement fail to reflect the families’ concerns, but it was not even executed as the victims had understood it would be. SEDENA informed Human Rights Watch that it had negotiated with the state government of Sinaloa for “the granting of scholarships for the minors who were left in a state of orphanhood.”[207] However, according to the victims’ families and their lawyer, only one scholarship has been awarded per family—forcing survivors to choose from among several children, which one will be able to go to school.[208]

V. The Exception that Proves the Rule: The Castaños Case

On July 11, 2006, municipal police officers detained a soldier who, dressed as a civilian, was causing trouble in a nightclub in the “red light district” of Castaños in the state of Coahuila.  After, five other men who identified themselves as members of the 14th Motorized Regiment of the Mexican Army (14Regimiento Motorizado del Ejército Mexicano) requested their colleague’s release. When the policemen released him, the soldiers threatened to come back.  When they did, half an hour later, they insulted, threatened, beat, and sexually abused 14 women who worked in the nightclubs, and beat seven police officers.

Although far from perfect, the Castaños case stands out as an example of how criminal investigations into military abuses against civilians should be carried out in Mexico. The military investigated breaches of military discipline, sanctioning soldiers who abandoned their duties. And civilians investigated the crimes against civilians that soldiers carried out, obtaining convictions and substantial sentences against three members of the military who are now being held in state prisons (a fourth one was released on bail).

The military may have had no choice but to cede jurisdiction in this case because there was no possible argument that the abuses took place during the soldiers’ discharge of their duties. The incident occurred a few days after the controversial presidential elections of 2006, when the soldiers were supposed to be safeguarding electoral ballots held at a Federal Electoral Institute (Instituto Federal Electoral, IFE) office in Monclova, Coahuila. Instead, they were several kilometers away, drunk and abusing women in a nightclub in Castaños.

While the reasons for civilian jurisdiction in this case were unusually clear, the same approach is warranted wherever military personnel are alleged to have committed serious human rights violations. Acts of torture, rape, and unjustified use of lethal force against civilians should no more be considered part of soldiers’ discharge of their duties than should egregious criminal behavior in a nightclub.

A distinctive factor in the Castaños case is that all actors involved believed that these cases did not belong in military courts, and acted accordingly. The state prosecutor investigated the case, the lawyers representing the victims collaborated with the prosecutor’s office, and a civilian judge convicted four soldiers. The state human rights commission and civil society, including the Bishop of Saltillo, immediately called for civilian investigations into these cases. The local media covered the jurisdictional dispute extensively, publishing several articles favoring civilian prosecutions. And military authorities collaborated with civilian ones.

The events in Castaños offer several important lessons. The first is that Mexican law, as it stands, does allow civilian authorities to prosecute military abuses against civilians. A second lesson is that consensus between government officials and nongovernmental actors on how these cases should be dealt with, together with extensive coverage in the media, helps push forward civilian investigations and convictions. Finally, this case shows that victims of abuses can play a critical role by speaking up against military abuses. It is extremely unlikely that victims would be willing to challenge their aggressors in this way before military prosecutors and courts, because of the widely shared perception—confirmed by decades of experience—that they will not find justice in military courts.

The Abuses

At around 2 a.m., a group of 10 to 20 members of the military wearing uniforms arrived in official vehicles at “El Pérsico Dancing” and “Las Playas Cabaret,” two nightclubs in the “red light district” of Castaños. During the following three hours, soldiers subjected 14 women who worked at the clubs and seven policemen who were providing security in the area to intimidation and abuse.

The CNDH has documented that the soldiers verbally abused the women, forced them to dance at gunpoint, and forced them into rooms. The soldiers threatened the women, forced them to undress, raped them (on occasions, repeatedly), sexually abused them, made them masturbate in front of the soldiers, and/or forced them to perform oral sex. One woman became pregnant as a consequence of the rape, and another, who was already pregnant, had an abortion after that night.[209]

The Investigations

Military and civilian authorities carried out two parallel, distinct investigations into these cases. The military investigated breaches of military duties, sanctioning soldiers who abandoned their duties, and civilians investigated the crimes against civilians.

The day after the soldiers committed the abuses, the PGJM initiated an investigation into nine soldiers’ responsibility for “abandoning their service.”[210] The military judge issued arrest warrants for all of them, but three soldiers were never subject to this criminal investigation because two deserted and one was dismissed from the armed forces.[211] One soldier was sentenced to two years in prison for “abandoning service.”[212]

The civilian state attorney general, for his part, investigated the military abuses against civilians. Although military prosecutors initiated a criminal investigation into the abuses, they ceded jurisdiction to civilian authorities, arguing they had documented “conduct by members of the military outside their acts of service… which, since they are not typically military crimes, must be investigated by state authorities.”[213] By mid-August 2006, the state attorney general had asked a judge to issue arrest warrants for 12 different soldiers.[214] A week later, the civilian judge authorized the indictment of eight of the 12 (four are at large).[215]

In October 2007, a civilian judge convicted four soldiers of the rape or sexual abuse of nine women and injuries to six police officers.[216] The judge held that four other soldiers were not guilty, and did not rule on the criminal responsibility of the four men that the victims held were guilty but who were not indicted and are at large.[217] Three of the convicted soldiers are being held in the state prison, and one of them (who was convicted for beating five police officers, but not for rape or sexual abuse) was released on bail.[218]

Though the civilian investigation and the judicial ruling are important steps toward promoting accountability for military abuses, the CNDH noted several shortcomings in the prosecutor’s and judge’s work. It noted that the state prosecutor’s office did not make use of all available witnesses and did not press charges for torture.  Further, the CNDH emphasized that the judge’s ruling did not address all of the abuses the commission had documented.[219]

The state prosecutor appealed the judicial ruling, requesting a higher court to reverse the non-guilty verdicts and impose higher penalties on those found guilty.[220] At this writing, the appeal is pending before the state’s highest court.[221]

The Consensus

The principal reason for the civilian prosecution of members of the military is probably the fact that there was total consensus in Coahuila—including among government authorities and civil society—that the military should not prosecute these cases.

The Coahuila state attorney general told Human Rights Watch that he did not ask the military for permission to analyze the case because he has the authority, as well as the obligation, to investigate it. According to the state prosecutor, civilian authorities must analyze any case in which a military official commits a crime against a civilian. If the crime or offense was committed off duty against a civilian, the case should be investigated by state authorities; and if the crime is committed while the soldier is on duty, the case should be investigated by federal authorities, given that soldiers are federal employees.[222] The first instance criminal judge who convicted the soldiers upheld the view that this case belonged in civilian courts.[223]

Other actors also played important roles in pushing for civilian investigations. The Bishop of Saltillo openly spoke up about the case immediately after it took place.[224] The victims’ lawyers collaborated with state prosecutors to build the cases.[225] The Coahuila State Human Rights Commission asked the CNDH, and all other state human rights commissions, to support its request to the Mexican president and the secretary of defense to present the soldiers involved in the abuses before state judicial authorities.[226] And the local media covered the case extensively, giving visibility to several arguments favoring civilian prosecutions.[227]

Even the military collaborated with civilian authorities by determining it had no jurisdiction to investigate the sexual abuses and the beatings. According to both the state attorney general and the civilian judge, military authorities have fully collaborated with them throughout the investigation.[228]

The Lessons of Castaños

The horrific crimes committed by soldiers in Castaños offer several important lessons regarding the use of military jurisdiction to investigate and prosecute military abuses against civilians in Mexico.

The first lesson is that the Mexican Constitution does not require the military to prosecute these types of crimes committed by soldiers against civilians.

Secondly, a consensus between government officials and nongovernmental actors on how these cases should be dealt with helps push forward civilian investigations and prosecutions, which are more likely to ensure accountability. Although civilian criminal investigations are far from perfect, the civilian justice system has basic safeguards to ensure impartiality and independence, which the military justice system lacks.

Finally, this case shows that victims of abuses play a critical role in these processes by speaking up against the military, which in turn helps them provide some degree of closure. Human Rights Watch interviewed three women involved in the criminal proceedings (one who was raped and impregnated by a soldier, another who was sexually abused, and a third who witnessed the events), and they all agreed that nothing will ever erase from their minds what happened to them.[229] However, they all felt “satisfied” when three men were convicted for these crimes, and encouraged other victims of military abuses to speak up.

It is extremely unlikely that victims would be willing to challenge their aggressors before military prosecutors and courts. For instance, two of the women interviewed by Human Rights Watch explained that they would not have felt comfortable participating in similar proceedings before military courts, since they did not trust they would be impartial. One of the women held that participating in the procedure was hard enough, “[so] imagine what it would have been like with someone who favors them.” Another woman added she also feared that military courts would be more worried about the military’s “image” than about procuring justice.

VI. Mexico's Obligations Under International Law

Obligation to Investigate Abuses

Mexico is party to several international treaties that impose an obligation to respect, protect, and fulfill the human rights listed in the treaties.[230] Those same treaties also impose on the Mexican state the obligation to deter and prevent violations of those rights, and to investigate, prosecute, and remedy their abuses.[231]

This second set of duties is, in part, a corollary to the first, reflecting the view that effective protection and prevention require investigation and punishment. The Inter-American Court of Human Rights, for example, has held that “the State has the obligation to use all the legal means at its disposal to combat [impunity], since impunity fosters chronic recidivism of human rights violations and total defenselessness of victims and their relatives.”[232]

The duty to investigate and punish also derives from the right to a legal remedy that these treaties extend to victims of human rights violations. Under international law, governments have an obligation to provide victims of human rights abuses with an effective remedy—including justice, truth, and adequate reparations—after they suffer a violation. Under the International Covenant on Civil and Political Rights (ICCPR), governments have an obligation “to ensure that any person whose rights or freedoms as herein recognized are violated shall have an effective remedy.”[233] The ICCPR imposes on states the duty to ensure that any person shall have their right to an effective remedy “determined by competent judicial, administrative or legislative authorities, or by any other competent authority provided for by the legal system of the State, and to develop the possibilities of judicial remedy.”[234]

At the regional level, the American Convention on Human Rights (ACHR) states that every individual has “the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.”[235] The Inter-American Court has held that this right imposes an obligation upon states to provide victims with effective judicial remedies.[236]

There are also specific obligations on states to prevent and punish torture and enforced disappearances. These two heinous crimes have their own treaties, which codify the obligations of governments, to ensure that whenever an offense occurs there is effective investigation and prosecution and a proper remedy for the victim.[237]

Obligation to Inform

In addition to the obligation to investigate and prosecute, states have an obligation to provide victims with information about the investigation into the violations.

Victims have a right to know the truth about violations they suffered. The UN General Assembly has endorsed the principle that victims’ right to remedies includes having access to relevant information concerning human rights violations.[238] International principles adopted by the former UN Commission on Human Rights state that “irrespective of any legal proceedings, victims, their families and relatives have the imprescriptible right to know the truth about the circumstances in which violations took place.”[239]

International human rights bodies have emphasized the state’s obligation to provide information to victims, particularly in cases of enforced disappearance. The UN Human Rights Committee has held that the extreme anguish inflicted upon relatives of the “disappeared” makes them direct victims of the violation as well.[240] To the extent the state fails to inform relatives about the fate of the “disappeared,” it fails to fulfill its basic obligation to bring an end to the violation.[241]The recently adopted International Convention for the Protection of All Persons from Enforced Disappearance (Convention Against Disappearances), which Mexico has ratified, sets out the right of each victim “to know the truth regarding the circumstances of the enforced disappearance, the progress and results of the investigation and the fate of the disappeared person.” The treaty requires each state party, including Mexico, to take appropriate measures in this regard.[242]

Similarly, the Inter-American Court has held that states’ obligation to provide reparation to victims of abuses, translates into an obligation to provide family members with information about what has happened to people who have “disappeared.”[243]

In addition to informing the victims and their families, the state has an obligation to inform society in general about human rights abuses, particularly when the violations are serious. This obligation derives partly from its duty to prevent future violations. According to the former UN Commission on Human Rights:

Every people has the inalienable right to know the truth about past events and about the circumstances and reasons which led, through systematic, gross violations of human rights, to the perpetration of heinous crimes. Full and effective exercise of the right to the truth is essential to avoid any recurrence of violations in the future.[244]

Similarly, the IACHR has established that “[e]very society has the inalienable right to know the truth about past events, as well as the motives and circumstances in which aberrant crimes came to be committed, in order to prevent repetition of such acts in the future.”[245]

The obligation to inform also derives from the right to “seek, receive, and impart” information, recognized in the Universal Declaration of Human Rights, the ICCPR, and the ACHR.[246] Although to date this has primarily been invoked to prevent states’ illegitimate interference or restriction on individuals or the media accessing information that is available, there is growing international recognition that the right also encompasses a positive obligation of states to provide access to official information. Both regional and international organizations have held that the right of access to official information is a fundamental right of every individual. In the Americas, the Inter-American Court has held that Article 13 of the ACHR (on the right to freedom of expression) entails the right to receive information held by government offices, as well as these offices’ obligation to provide it.[247]

According to the “Principles on Freedom of Information Legislation,” endorsed by the UN and Inter-American human rights systems, the right of access to information is governed by the “principle of maximum disclosure.”[248] In other words, the government is presumed to be under an obligation to disclose information, a presumption that can be overridden only under circumstances clearly defined by law, in which the release of information could undermine the rights of others or the protection of national security, public order, or public health or morals.[249]

Judicial authorities, as part of government, are subject to these obligations. According to the U.N. special rapporteur on freedom of opinion and expression, the OSCE representative on freedom of the media, and the OAS special rapporteur on freedom of expression, “courts and judicial processes, like other public functions, are subject to the principle of maximum disclosure of information which may be overcome only where necessary to protect the right to a fair trial or the presumption of innocence.”[250]

International Standards on Judicial Independence and Impartiality

Several international treaties, including the ICCPR and the ACHR, require that individuals be tried by “independent and impartial tribunals.”[251] A series of international principles set criteria to determine whether any justice system—including a military one—is in fact independent and impartial:

• Judges must be free from constraints, pressures, or orders imposed by the other branches of government. According to the UN Basic Principles on the Independence of the Judiciary (UN Basic Principles), “[i]t is the duty of all governmental and other institutions to respect and observe the independence of the judiciary,” and the judiciary “shall decide matters before them impartially, on the basis of facts and in accordance with the law, without any restrictions, improper influences, inducements, pressures, threats or interferences, direct or indirect, from any quarter or for any reason.”[252]
• Judicial decisions cannot be subject to change by authorities other than superior courts. The UN Basic Principles state that “[t]here shall not be any inappropriate or unwarranted interference with the judicial process, nor shall judicial decisions by the courts be subject to revision.”[253]
• Judges should have security of tenure to avoid fear of being removed from their posts for the decisions they adopt. The UN Basic Principles state that “[t]he term of office of judges, their independence, security, adequate remuneration, conditions of service, pensions and the age of retirement shall be adequately secured by law” and that “[j]udges, whether appointed or elected, shall have guaranteed tenure until a mandatory retirement age or the expiry of their term of office, where such exists.”[254]
• Judges should have proper training and qualifications, which should be the basis of their appointments. The Universal Charter of the Judge points out that “[t]he selection and each appointment of a judge must be carried out according to objective and transparent criteria based on proper professional qualification.”[255]

International Standards on Military Jurisdiction

The independence necessary to investigate and prosecute military abuses generally does not exist when military authorities investigate human rights violations committed by military personnel and prosecute them in military courts.

The only explicit prohibition in international law on military prosecutors investigating, and military courts trying, human rights cases is related to enforced disappearances. The Inter-American Convention on Forced Disappearance of Persons states that individuals accused of carrying out “disappearances” should be tried by ordinary courts, “to the exclusion of all other special jurisdictions, particularly military jurisdictions.”[256] (Mexico made a reservation when ratifying this treaty, stating that its military justice system may prosecute and investigate crimes, if members of the military commit them while on duty. Although the validity of this reservation has not yet been studied by international bodies, Human Rights Watch believes it contradicts the object and purpose of the treaty.)[257] The Declaration on the Protection of All Persons from Enforced Disappearances includes a similar provision.[258]

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.

The UN Human Rights Committee (HRC), which monitors implementation of the states’ obligations under the ICCPR, has repeatedly called on states parties to subject military personnel, alleged to have committed human rights violations, to civilian jurisdiction.[259] According to the Committee, the “wide jurisdiction of the military courts to deal with all the cases involving prosecution of military personnel ... contribute[s] to the impunity which such personnel enjoy against punishment for serious human rights violations.”[260]

The IACHR has held that military jurisdiction is not appropriate for investigating, trying, and punishing violations of human rights, given that “when the State permits investigations to be conducted by the entities with possible involvement, independence and impartiality are clearly compromised.”[261] The result, concludes the commission, is “de facto impunity which ‘has a corrosive effect on the rule of law and violates the principles of the American Convention.’”[262]

The Inter American Court of Human Rights, for its part, has stated that military jurisdiction should have a “restrictive and exceptional scope.”[263] A “restrictive” jurisdictional scope would require that civilians be excluded and that military personnel only be tried by military tribunals when they are charged with crimes or offenses which “by [their] own nature attempt against legally protected interests of military order.”[264] Failure to transfer such cases to civilian jurisdiction results in a breach of the state’s guarantee to an effective recourse.[265] In 2007 the Inter American Court further developed its case law and concluded that “the military criminal jurisdiction is not the competent jurisdiction to investigate and, if applicable, prosecute and punish the perpetrators of human rights violations.”[266] This view has been upheld in several subsequent decisions.[267]

The European Court of Human Rights (ECHR) has not ruled that military courts lack independence and impartiality per se, but has suggested certain instances in which military courts are not appropriate. For instance, in Incal v. Turkey,the ECHR held that a petitioner had not been given a fair trial because the military judge who had taken part in the trial was accountable to the executive and military authorities, and his superiors were in a position to advance his career.[268] In Findlay v. United Kingdom, the ECHR reasoned that for a ruling to be independent and impartial, it has to have some degree of finality. It found that a military court’s ruling was neither independent nor impartial, because the members of the court who issued the decision were subordinates of the prosecuting officer, who had the authority to change any decision that the court made.[269]

Finally, sets of principles presented before the former United Nations Human Rights Commission, which are non-binding guidelines for states, also recommend that human rights cases be transferred to civilian courts. The Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, presented before the commission in 2005, state that “the jurisdiction of military tribunals must be restricted solely to specifically military offenses committed by military personnel, to the exclusion of human rights violations, which shall come under the jurisdiction of the ordinary domestic courts or, where appropriate, in the case of serious crimes under international law, of an international or internationalized criminal court.”[270] Similarly, the Draft Principles Governing the Administration of Justice through Military Tribunals, presented to the commission in January 2006, state that “in all circumstances, the jurisdiction of military courts should be set aside in favour of the jurisdiction of the ordinary courts to conduct inquiries into serious human rights violations such as extrajudicial executions, enforced disappearances and torture, and to prosecute and try persons accused of such crimes.”[271]

International Decisions on Mexico’s Military Justice System

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. These reports include:

• A 1998 report by the UN special rapporteur on torture, which found that "[m]ilitary personnel [in Mexico] appear to be immune from civilian justice and generally protected by military justice.”[272]
• A 1999 report by the U.N. special rapporteur on extrajudicial, summary or arbitrary executions, which determined that military courts in Mexico “do not conform to the Basic Principles on the Independence of the Judiciary,” that “the military justice system is arbitrary, resulting in miscarriage of justice,” and that “there is a reluctance on the part of the competent Mexican authorities to hold members of the military forces accountable for extrajudicial killings and other human rights violations.”[273]
• A 2002 report by the U.N. special rapporteur on the independence of judges and lawyers, which found that “the public [has] no confidence in military courts” and thus “many prosecutions of military personnel accused of human rights violations before these tribunals are not pursued.”[274] The rapporteur also expressed concern over “the want of impartiality of the military courts and the reluctance or unwillingness of civilian witnesses to appear before military courts to give evidence against military personnel.”[275]
• A 2003 report by the office of the UN High Commissioner for Human Rights, which concluded that “given the imminently hierarchical structure of the Armed Forces, military courts lack total independence and impartiality due to the fact that its members … report to higher ranking officers in the Army.”[276]
• A 2006 report by the U.N. special rapporteur on violence against women, its causes and consequences, which held that after asserting jurisdiction to investigate and prosecute cases in which members of the military had raped women in southern Mexico, “rather than carrying out full and impartial investigations, military investigators have reportedly delayed criminal proceedings and tried to disprove the allegations thereby placing the burden of proof on the victim.”[277]
• A 2006 report by the IACHR, which held that Mexican military prosecutors lack “by definition, the necessary independence and autonomy to carry out an impartial investigation of human rights violations allegedly committed by members of the armed forces.” The commission concluded that “the investigation by the [military prosecutor’s office] of human rights violations allegedly perpetrated by Mexican military personnel is itself a violation of the American Convention.”[278]
• A 2007 report by the United Nations Committee Against Torture, which “noted with concern” that “cases of torture committed by military personnel against civilians during the performance of their duties continue to be tried in military courts.”[279]

More recently, after a 2008 visit to Mexico, the UN High Commissioner for Human Rights also recommended that civilian courts try military officers engaged in law enforcement activities.[280]

Acknowledgments

This report was written by Tamara Taraciuk, Mexico researcher in the Americas Division of Human Rights Watch. Paulina Vega, a consultant with the Americas Division, co-researched this report. The report was edited by José Miguel Vivanco, executive director of the Americas Division, María McFarland Sánchez-Moreno, senior researcher in the Americas Division, Aisling Reidy, senior legal advisor at Human Rights Watch, and Joe Saunders, deputy program director at Human Rights Watch. Americas Division associates Kavita Shah and Paola Adriazola contributed to research logistics and production. Americas Division interns Alana Roth, Andrea Oñate-Madrazo, Marlon Arias, Mirte Postema, and Sergio Garcidueñas-Sease provided valuable research support.

Human Rights Watch would like to thank the many organizations and individuals that contributed to this report, some of whom asked not to be identified. We are especially grateful for the critical insights and advice we received from Santiago Aguirre and Jaqueline Sáenz from the Centro Prodh, María Sirvent and Mario Solórzano from the Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, Patricia Bordier and Vidulfo Rosales from the Centro de Derechos Humanos de la Montaña Tlachinollan, Edgar Cortez from the Red Nacional de Organismos Civiles de Derechos Humanos “Todos los Derechos para Todas y Todos,” and Sandra de Luna and Martha Castillon from Copprovi.We also received valuable input from Jorge Castañeda and Mariclaire Acosta. Human Rights Watch takes full responsibility for any errors or omissions in this report.

We would like to thank the government officials we interviewed, as well as the Ministry of Foreign Affairs for organizing these meetings.

We are deeply grateful to the victims and relatives of victims of human rights abuses who shared information regarding their cases with us.