Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (18 page)

The assumption that the Commission would hand over only finished cases to the MP was not completely shared by all the relevant stakeholders, which resulted in unsolved overlapping and lack of coordination. The relations between the Commission and the MP could not avoid misunderstandings and tension. When the Final Report was issued, the MP was unreceptive. Confusion regarding the issue of naming perpetrators added to the estrangement between both institutions, with the regrettable result of a slow and half‐willed investigation into the cases left by the Commission.

In spite of its shortcomings it cannot be doubted that the Peruvian Truth and Reconciliation Commission acted with zeal for justice and that the protection of victims' rights was its paramount interest. Its best efforts had to deal with the formidable unwillingness and inability of the MP and the structural weaknesses of the Peruvian state. In this regard, the CVR went through the same experiences of human rights organizations struggling against impunity. Its
boldness and good faith continue to deserve better results.

Mariclaire Acosta

Foreign Affairs of Mexico

Esa Ennelin

University of Helsinki

The current government of Mexico, led by
Vicente Fox, came to power thanks to the first truly democratic and competitive national election held in the past 90 years. The vote that resulted in his victory in the year 2000 ended the 71‐year‐old monopoly of state power held by the
Institutional Revolutionary Party (
Partido Revolucionario Institucional
– PRI) since 1929, when it was founded by a coalition of
caudillos
and revolutionary generals after two decades of revolution and civil war.

The very fact that the Mexican electorate was able to produce such a result was the product of generations of struggle. It was also the first time in the history of the country that political change did not result from the use of violence and bloodshed, but was carried out by the peaceful exercise of political rights. This in itself is no small matter, but a fact which tends to be overlooked, given the stable nature of Mexico's protracted authoritarian regime. The election that brought
Vicente Fox, a candidate of the center‐right opposition party, National Action Party (
Partido Acción Nacional
– PAN) to power, was the result of the consistent and peaceful mobilization of thousands of people for the effective exercise of civil and political rights, and especially for the basic right to participate in free, fair and authentic elections. This fact makes it an historic turning point of great significance.

The gradual and prolonged transition to democratic rule has not automatically delivered respect for all human rights. However, it has produced some significant changes which have had an impact on the way that these rights are perceived by large sectors of society and in the government, especially at the federal level. Respect for human rights has become a legitimate political claim and is now widely perceived as an obligation of the government. This is certainly a far cry from the prevailing situation
of just a few years ago, when political violence and systematic repression accounted for numerous cases of disappearances and extra‐judicial executions, as well as the generalized use of torture and arbitrary detention of real or perceived political opponents.

In this context, it is imperative to ensure accountability for the state‐sponsored crimes of the past four decades. These range from massacres by security forces of peaceful protesters which took place in
Tlatelolco (1968), in Jueves de Corpus in Mexico City (1971), in Aguas Blancas, Guerrero (1995) and in Acteal, Chiapas (1997), to name but a
few. The disappearances, torture and extra‐judicial executions of countless victims which were implemented on a large scale in the period of the so‐called “dirty war” against the armed opposition groups during the 1970s and part of the 1980s and have continued sporadically up to the present, also need to be investigated and punished.
[2]

These crimes are systemic in nature. They were originally planned and executed by security forces operating under the direct command of the President of the Republic and the highest‐ranking officials in the successive
PRI governments. This was the case of the notorious
Dirección Federal de Seguridad
, disbanded in 1984 after pressure from the United States government for its involvement in drug corruption scandals.
[3]
Under the PRI regime, when serious social and political dissent appeared in regions marked by inequality and oppression of its indigenous
campesino
population, such as Chiapas, Oaxaca and Guerrero, governors and local power bosses or
caciques
, would take over law enforcement activities, and reproduce the original pattern of state repression, always with the knowledge and complicity of the federal government.
[4]
Unfortunately, in some of these areas the situation seems to have changed little.

Thus, if Mexico wants to consolidate the gains made by its incipient electoral democracy, it must move forward decisively to clarify a murky past of state‐sponsored violence and implement a second set of reforms for the construction of new institutions and practices in order to ensure real democratic governance. Foremost among these reforms is the need to overhaul law enforcement agencies and the justice system in order to provide a minimum of public and judicial security to the population. Given the nature of the previous political system, more akin in many ways to that of the ex‐Soviet Union than to the authoritarian dictatorships of the rest of Latin America, police organizations, prosecutors, judges and other legal actors have operated in a context where the monopoly of power and machine‐style politics encouraged corruption, impunity and lawlessness.

In comparison with other countries in the region, Mexico only fairly recently developed an organized and articulated movement demanding explicit respect for human rights. The 1968 student movement was really about civil liberties, although its rhetoric was couched in the revolutionary Marxist terms of the era. A few years later in the 1970s, after repression had turned peaceful protest into armed revolt, the quest for members of the guerrilla groups abducted and disappeared by
security forces spawned the first mobilizations of relatives, which were similar to other movements in the region. These groups banded with leftist political parties to create a short‐lived national front against repression.

The López Portillo government, inaugurated in 1976, realized that the repressive policy of its predecessors had led to more revolt and bloodshed than to pacification. But the issue of the
desaparecidos
remained unresolved. After several high profile mobilizations by organizations such as
Comité Eureka
and the Committee of the Mothers of the Disappeared for Political Reasons (
Comité de Madres de Desaparecidos Políticos
), the Attorney General of the Republic presented a public report in 1979 which stated that the majority of the alleged
desaparecidos
had died in armed confrontations or were still fugitive.
[5]

It was not really until the mid‐1980s – well after the PRI had reached an agreement with the previously outlawed left‐wing parties that led to their participation in the national elections of 1982 – that the first independent human rights organizations emerged.
[6]
These two social movements, the “anti‐repression” movement of the radical left, on the one hand, and the nascent human rights movement, on the other, never completely understood one another, thus weakening their respective causes. As we shall see further on, these differences were to become very apparent in the first years of the Fox government over the issue of how to confront the legacy of repression and human rights abuse.

The use of international human rights protection mechanisms in Mexico was initially introduced in 1989 by the opposition party
Partido Acción Nacional
(PAN), as part of its strategy for contesting rigged government elections. At present, there are approximately 100 individual petitions from Mexican nationals in the Inter‐American Human Rights system. Approximately 800 more are lodged in the various human rights protection mechanisms of the
UN Human Rights Commission. Most of these cases deal with violations of the right to life, physical integrity, freedom and due process committed during the decade of the nineties.
[7]

The government of
Carlos Salinas (1990–94), tainted by the questionable election that brought him to power as well as by notorious human rights abuse, surprised the country by decreeing the creation of a national ombudsman – tied to the government – charged with the protection of human rights. Thus the National Human Rights Commission (
Comisión Nacional de Derechos Humanos
– CNDH), which succeeded a modest office for human rights in the Ministry of the Interior, came into being. In time, similar state commissions emerged and a national system for the protection of human rights was formed. Nine years later, the CNDH became fully independent of the government. This state‐managed human rights system has had a relatively modest impact. It is led primarily by political appointees and is staffed mostly by bureaucrats from the different law enforcement agencies. The
CNDH inherited an incipient program for the
investigation of the fate of hundreds of disappearances during the “dirty war” initiated by its predecessor as part of a promise made by President Salinas on his inauguration day to
Rosario Ibarra de Piedra, mother of a disappeared activist and founder of
Comité Eureka
.

In his inaugural address, President Fox started out by stating that human rights would be a central concern of his government and that he would put together a very forceful policy in this area. He repeated his campaign promise to establish a
truth commission that would explore human rights abuses of the past
[8]
and subsequently reinforced the seriousness of his commitment to human rights by signing an ambitious cooperation agreement with the
UN High Commissioner for Human Rights. Unfortunately, as with almost everything else in the Fox government, these promises were largely unfulfilled. Undoubtedly his government has done more for human rights than the preceding ones. But, as with many of his campaign promises and attempts at reform, his administration proceeded to protect human rights in a haphazard fashion, without a consistent and coordinated set of efforts to tackle the deeply ingrained structural problems of the country that impede their enjoyment.

During the five‐month transition period following the elections, Fox had sent several signals indicating that his campaign promises for human rights were serious. He met with several ex‐guerrillas in a highly publicized event and reiterated his promise for a truth commission. He also
set up a team charged with reforming the justice system. A well‐respected human rights lawyer was a prominent member of this team, which came up with a blueprint for a complete overhaul of the system. It was leaked to the press that the team leader was to be appointed Attorney General of the new government. However, a few days before his inauguration, President‐elect Fox suddenly switched course and designated a general on active duty who had been the military prosecutor in the previous government, Rafael Macedo
de la Concha. This surprise designation sent an extremely negative signal to the human rights community. Macedo de la Concha's human rights record was tainted and he was accused of many notorious abuses that had received ample international attention.

With these mixed signals, during the first months of his tenure, President Fox relegated human rights almost entirely to the sphere of foreign policy, perhaps on the assumption that the rest of his government, by virtue of its having come to power in a peaceful, democratic election, would be automatically committed to human rights. For the time being, he ignored the promise to create a truth commission.

An important benchmark of Foreign Minister Jorge Castañeda's new human rights policy was the treatment of the case of Ricardo Miguel Cavallo, a former Argentine military officer living in Mexico who was involved in a fraudulent operation related to the mandatory registration of vehicles with a private institution called RENAVE. The case is interesting because it was the first time that Mexican institutions showed an attitude of openness around the treatment of gross human rights violations.

In 1996, a group of victims of the Argentine military dictatorship, some of whom lived in
Spain, asked a Spanish judge to initiate a criminal prosecution against the Argentine military. Based on the principle of
universal jurisdiction, Judge
Baltazar Garzón started an investigation for the crimes of terrorism, genocide and torture.

A few weeks after the election of Vicente Fox, the Mexican newspaper
Reforma
revealed that Ricardo Miguel Cavallo, president of RENAVE, was a former member of the Argentine navy, accused of participating in gross human rights violations in the
Escuela Mecánica de la Armada
(ESMA), the largest clandestine detention center used by the military during the dictatorship in that country. The International Police (Interpol) detained Cavallo at the Cancun airport while he was attempting to flee to Argentina where his impunity would be guaranteed. The following day, Madrid's Central Criminal Investigation Court No.5 of the
Audiencia Nacional
asked the Mexican government to detain Cavallo while an extradition request was processed.

The case confronted Mexican authorities with an interesting challenge. On the one hand, since the crimes had not been committed in Mexico and the victims were not Mexican, any decision in this case would not constitute a precedent. However, the public's reaction to this decision would be a good indicator of popular response to the opening of criminal investigations for the so‐called Mexican “dirty war”. On the other hand, since this was a
universal jurisdiction case, which attracted significant attention outside of Mexico's borders, a favorable decision would allow the newly‐elected government to demonstrate to the international community that an important change had taken place regarding human rights.

On October 5, 2000, the Ministry of Foreign Affairs forwarded a formal extradition request from the Spanish authorities to the judicial branch in order to obtain an opinion. In January 2001, Judge Jesús Guadalupe Luna Altamirano
[9]
ruled that Cavallo should be extradited to Spain in order to face trial for his probable responsibility for the commission of the crimes of terrorism and
genocide. The Supreme Court confirmed the Judge's decision and authorized Cavallo's extradition.
[10]
The Supreme Court did not apply international law in its decision, and it neither acknowledged nor denied the principle of
universal jurisdiction. Cavallo was extradited in June, 2003, and as of February 2006 still awaits trial in
Spain.