Senator Alejandro González Alcocer, President of the Justice Committee of the Mexican Senate
Senator Ricardo Pacheco Rodríguez, Secretary of the Justice Committee of the Mexican Senate
Senator Leonel Godoy Rangel, Secretary of the Justice Committee of the Mexican Senate

Dear Senators González Alcocer, Pacheco Rodríguez, and Godoy Rangel:

I am writing on behalf of Human Rights Watch regarding the various legislative proposals being drafted in Congress to reform the Code of Military Justice. It is commendable that legislators are contemplating reforms that could address one of the root causes of impunity for human rights violations committed by members of the military, which is a serious and long-standing problem in Mexico. This letter will lay out three principles that are essential to ensuring that alleged abuses committed by military personnel are investigated and prosecuted in a civilian justice system that is independent and impartial, in accordance with international human rights principles and the jurisprudence of Mexico’s Supreme Court.

Human Rights Watch has conducted extensive research-including two reports, Neither Rights Nor Security[1] (November 2011) and Uniform Impunity[2] (July 2009)-that document abuses committed by military and other security forces against civilians, particularly those perpetrated in the context of the government’s counternarcotics efforts under President Felipe Calderon. One of the main reasons military abuses persist is because soldiers who commit them are virtually never held accountable for their crimes. And one of the main reasons they are not held accountable is because they continue to be investigated and prosecuted in the military justice system, which lacks the independence and impartiality to judge fellow members of the military, and has failed in its obligation to provide victims with an effective judicial remedy.

Both international courts and Mexico’s Supreme Court have recognized the gravity of this problem, and called on Mexico to reform its military justice system. The Inter-American Court of Human Rights has issued four rulings since 2009 stating that Mexico should stop using the military justice system to investigate and prosecute human rights abuses allegedly committed by the military and should instead ensure that all such cases fall within the exclusive jurisdiction of civilian authorities from the moment abuses are denounced.[3] In July 2011, Mexico’s Supreme Court recognized that the decisions of the Inter-American Court are binding, and should be taken into consideration in rulings by Mexican judges.[4]

Yet the practice remains unchanged, as do the results: cases of human rights violations continue to be sent to the military justice system, with the full complicity of the civilian Attorney General’s Office, where they still go unpunished. The Military Attorney General’s Office opened 3,671 investigations into human rights violations committed by soldiers against civilians from 2007 to June 2011.[5] Yet since 2007, only 29 soldiers have been sentenced in military courts for committing human rights violations. [6]

As members of Congress debate reforms to the military justice system, we would like to set out three key principles that are critical to ensuring that Mexico complies with the decisions of the Inter-American Court, the Supreme Court, and the country’s obligations under international human rights treaties. These principles are crucial for guaranteeing that investigations into members of the military for human rights violations are independent and impartial.

First, all types of alleged human rights abuses, without exception, should be investigated and prosecuted in the civilian justice system. Second, civilian justice officials should have the exclusive authority to carry out preliminary investigations into incidents involving potential abuses committed by the military against civilians, and they alone should determine whether a case should be investigated in civilian jurisdiction. Third, members of the military alleged to have committed abuses should not be subject to special procedures or evidentiary rules in the civilian justice system, nor should these cases of alleged abuse be judged exclusively by current or former members of the military.

I. All cases of alleged human rights abuses should be investigated and prosecuted in the civilian justice system.

In October 2010, President Calderon proposed a reform to the Code of Military Justice that would subject three types of human rights violations-enforced disappearance, rape, and torture-to civilian jurisdiction, while other serious violations (such as extrajudicial executions and sexual assault) would continue to be investigated and prosecuted within the military justice system. Any reform proposal that would only exclude select human rights abuses, rather than all of them, would not comply with the Inter-American Court ruling in Radilla Pacheco v. Mexico, which stated, “[r]egarding situations that violate the human rights of civilians, military jurisdiction cannot operate under any circumstance,”[7] a ruling that was affirmed by Mexico’s Supreme Court in July 2011. Indeed, President Calderon himself has publicly acknowledged the need for his reform proposal to be adjusted in light of the Supreme Court’s decision.[8]

II. Civilian justice officials should have the exclusive authority to carry out preliminary investigations into incidents involving potential human rights violations committed by the military against civilians, and based on the findings of those investigations determine whether a case should be investigated in civilian jurisdiction.

The prohibition of military investigations into alleged human rights violations should apply to all stages of the inquiry, including the preliminary evidence-gathering phase. This initial stage is crucial for gathering evidence to determine whether a human rights violation has occurred, such as eyewitness accounts and bullet casings. Therefore, when an incident involving the military occurs that may constitute a human rights violation, the military’s actions should be limited to immediately notifying civilian justice officials and securing the crime scene to prevent the contamination of evidence. When civilian investigators arrive at the scene of an alleged crime, members of the military should cooperate fully with their investigation. The military should not, however, interview witnesses, detainees, or alleged victims, gather evidence, or conduct any other part of the preliminary investigation.

The jurisprudence of the Inter-American Court clearly states that investigations into alleged abuses by the military should-from their outset-be carried out by civilian investigators. For example, in its November 2010 ruling in the case of Cabrera Garcia and Montiel Flores v. Mexico, the Court stated that, “the incompatibility of the American Convention with the intervention of the military courts in this type of [human rights] cases does not only refer to the tribunal’s duty to prosecute, but mainly to the investigation itself, given that its conduct constitutes the beginning and the necessary premise for the subsequent intervention” of any tribunal.[9]

The proscription on members of the military conducting the preliminary investigation is imperative given the military’s history of manipulating evidence in the immediate aftermath of incidents where soldiers have committed human rights abuses. In Neither Rights Nor Security, Human Rights Watch documented cases in five Mexican states in which military personnel appear to have manipulated, concealed, or destroyed evidence to protect soldiers who had committed killings, disappearances, and torture. These included several cases of extrajudicial executions in which findings suggest the military manipulated crime scenes to make victims appear to be criminals or the casualties of fabricated shootouts.

For example, Juan Carlos Peña Chavarria and Rocío Romeli Elías Garza, husband and wife, were shot by members of the Army on March 3, 2010, in Anáhuac, Nuevo Leon.[10] Eyewitnesses told Human Rights Watch that the two were walking to their car when they were caught in a shootout between the military and armed men. Peña tried to run to safety, but was shot by the military. When the shooting stopped, Elías raised her hands and pleaded for help for her husband, yelling that they were unarmed civilians. She was shot by a soldier standing approximately 10 feet away. Soldiers then approached the victims and shot them again from point-blank range. Then, soldiers moved the bodies, placed bulletproof vests on both victims, and planted arms near them. A statement released the following day by the army said the couple were members of a drug cartel killed in a shootout.

The manipulation of crime scenes by the military has also been documented by Mexico’s National Human Rights Commission (CNDH), such as in its investigation into the killing of Martín and Bryan Almanza Salazar, ages 9 and 5.[11] While the Army claimed their deaths and the wounding of five other civilians were the result of a shootout between soldiers and criminals, the CNDH’s investigation found that no such shootout had occurred. Rather, the CNDH found, soldiers had manipulated evidence to support their falsified account, including transporting several cars to the crime scene after the incident to present the appearance of a confrontation.

Based on the findings of their preliminary investigations, civilian justice officials should have the exclusive authority to determine whether a case may constitute a human rights abuse and should be investigated in civilian jurisdiction. This is essential given the military’s proven track record of downgrading the severity of charges against soldiers who have committed violations against civilians. For example, Human Rights Watch conducted an in-depth review of 74 cases in which the CNDH determined that members of the Army had committed acts of torture or cruel, inhuman, or degrading treatment against civilians. In roughly two-thirds of the cases-51 out of 74 cases-we found that acts of torture or cruel, inhuman, or degrading treatment documented by the commission were classified by military justice officials as lesser offenses such as “injuries” (lesiones) or “abuse of authority.”[12] This bears direct relevance for the jurisdiction in which such crimes are investigated, because military investigators may construe such acts as lesser crimes constituting breaches of military discipline (not rising to the level of human rights abuses) and thereby guarantee that their investigation and prosecution would be carried out in the military justice system.

For example, on November 14, 2008, Army soldiers entered the home of brothers José Luis and Carlos Guzmán Zúñiga in Ciudad Juárez, Chihuahua, and arbitrarily detained them. The brothers have not been seen since. After an in-depth investigation, the CNDH concluded that "the arrest and subsequent disappearance of José Luis and Carlos Guzmán Zúñiga is attributable to public officials from the Army."[13] However, according to the Army, military prosecutors are investigating the case as a crime of "abuse of authority," which the military law defines as, “a soldier who treats an inferior in a mode that violates legal norms”[14] -a crime that would not qualify as a human rights violation, and therefore not be transferred to civilian jurisdiction were it up to the military to determine jurisdiction. No soldiers have been charged in the case, according to Army.[15]

III. Members of the military alleged to have committed human rights violations should not be subject to special procedures or evidentiary rules in the civilian justice system, nor should the judges and prosecutors who make up these special tribunals be required to be current or former members of the military.

It has come to our attention that one of the proposals to reform the Code of Military Justice would create special civilian tribunals or chambers to investigate and prosecute members of the military accused of abuses. We have serious concerns that the rules and composition of such tribunals could serve to undermine their independence and impartiality, and introduce arbitrary, unjustified requirements for the judges and prosecutors who would compose them.

Any system-civilian or military-that would create special procedures, laws, or evidentiary standards for judging members of the military accused of committing abuses would be difficult to reconcile with the right of citizens to equal protection under the law. This principle-which is critical to the rule of law and is guaranteed by international human rights treaties-prohibits establishing different standards of justice for different people based on their identity or status.[16]

It has also come to our attention that one possible component of the proposal would be to require that the judges and prosecutors in these special tribunals to be current or former members of the military. The establishment of this criterion would suggest that in order to adequately investigate and prosecute human rights cases, judges and prosecutors need military background or expertise. However, human rights violations are by definition outside of the realm of military service, which is precisely why they should be judged in civilian jurisdiction. Nor should judges and prosecutors investigating human rights abuses require specialized knowledge of the Code of Military Justice, or other military norms, as those would not be applicable. There is no reason why, for example, a judge with a military background is better equipped to preside over a case of alleged rape than a civilian judge with no military experience.

The UN Special Rapporteur on the Independence of Judges and Lawyers, the UN Working Group on Arbitrary Detention and the UN Human Rights Committee have all raised concerns that special courts or tribunals are often deliberately established to apply “exceptional procedures” that do not comply with normal standards of justice. This undermines the integrity of the judicial system and is not acceptable. Any specialized jurisdiction should strictly comply with the requirements of independence and impartiality, and all proceedings before it should meet the same standards of fairness, due process, and ability to deliver justice as ordinary courts.

We are grateful that Congress is engaged in a serious discussion about reforming of the Code of Military Justice, which has long perpetuated impunity for grave military abuses. It is absolutely critical that any reform addresses the root of this problem, rather than create a new system that reproduces the current one’s fatal flaws. If the international legal standards outlined above are followed in crafting a reform, Mexico will take an historic step towards guaranteeing the rights of victims, creating more accountable and effective security forces, and shoring up the rule of law. We hope it will seize this opportunity.

I would ask that you please share this letter with the members of the Senate Justice Committee, as well as other senators from your respective parties.

Thank you for your attention to this critical matter,

José Miguel Vivanco

CC: Senate Justice Committee: Sen. Ulises Ramírez Núñez, Sen. Renán Cleominio Zoreda Novelo, Sen. María Serrano Serrano, Sen. José Alejandro Zapata Perogordo, Sen. Sergio Álvarez Mata, Sen. Fernando Elizondo Barragán, Sen. Jesús Murillo Karam, Sen. Pedro Joaquín Coldwell, Sen. Pablo Gómez Álvarez, Sen. Yeidckol Polevnsky Gurwitz, Sen. Tomás Torres Mercado, Sen. Dante Delgado

CC: SenateJunta de Coordinación Política: Sen. Manlio Fabio Beltrones Rivera, Sen. José González Morfín, Sen. Carlos Navarrete Ruiz, Sen. Arturo Escobar y Vega, Sen. Dante Delgado, Sen. Ricardo Monreal Ávila, Sen. José Alejandro Zapata Perogordo, Sen. Humberto Aguilar Coronado, Sen. Melquiades Morales Flores

Source: Human Rights Watch