Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (19 page)

Following the Cavallo case, the Legal Advisor of the Foreign Ministry made an extraordinary effort to bring Mexico up‐to‐date in relation to its pending ratifications and accessions to international conventions in the field of human rights. The effort was only partly successful because the Senate blocked the ratification of the Rome
Statute, which established the jurisdiction of the International Criminal Court, and Protocol II of the
Geneva Conventions. It also added an interpretation to the Inter‐American Convention on Forced Disappearance, stating that the Convention will not apply to those
events of forced disappearance which took place before the Convention's entry into force.
[11]

Human rights had a high profile in the new government's rhetoric but the initial efforts to consolidate a consistent policy for their advancement were eventually undermined by the joint action of the Ministry of Defense, the Attorney General's Office and the Ministry of the Interior, often in an alliance with the National Human Rights Commission. Despite the high visibility of the issue, little was achieved in the struggle against impunity and in the everyday behavior of the security forces, especially at the local level. The creation of a truth commission was not mentioned again in public by the government, despite its
announcement and the fact that it had been a reiterated campaign promise.

Nonetheless, the issue of how to deal with the legacy of the past was debated in the press and inside the government, where the discussion over whether or not to establish a truth commission was intense. In June 2001, the President finally approved the creation of a body charged with the public investigation of human rights abuses and corruption. This project of a truth commission, initially announced at Fox's inauguration, was designed by a group of independent experts under the direction of Adolfo Aguilar Zinser. The human rights community was not consulted, and the project was never implemented.

Santiago Creel, Minister of the Interior and
PAN Senator Diego Fernández de Cevallos, led the offensive against the project. They argued that a
truth commission would have disastrous effects on the nascent Mexican democracy by spurring an indiscriminate witch‐hunt against the perpetrators of past crimes. Many of these people were still powerful and held important positions in the Congress. To expose them would mean losing any support for important reforms like the badly needed reform of the tax system. These two politicians were backed by a less visible but very effective coalition of former officials, intellectuals, and prominent figures such as Felipe González, former Prime Minister and head of the Socialist Party of Spain.
[12]

The violent death, in suspicious circumstances, of Digna Ochoa, a widely known and respected human rights defender in October of 2001 created a huge national and international uproar. This forced President Fox to take his responsibilities in the field of human rights more seriously. Some of his boldest initiatives correspond to the immediate aftermath of this event, such as the liberation of victims of abuse like Montiel and Cabrera, two environmentalist peasants, and General Gallardo, all of them prisoners of conscience adopted by Amnesty International. He also took decisive steps for the implementation of some form of response to the demand for accountability for past abuses.

The National Human Rights Commission, miffed at the thought that the Ministry of Foreign Relations' proactive human rights policy was leaving them behind, entered the scene at the bidding
of Santiago Creel. The investigation of the abduction and
disappearance of 532 victims of the “dirty war,” initiated by the Salinas government in 1988, was taken out of the freezer and speedily completed.

On November 27, 2001, in a highly charged formal ceremony held at Lecumberri, a former prison turned into the seat of the National Archives,
José Luis Soberanes, President of the
CNDH, read excerpts from a 3,000‐page report which disclosed the findings of the institution on the
fate of these 532 persons. Of these cases, 275 were of people who had “disappeared” following detention by state authorities. Evidence, albeit inconclusive, existed of the involvement of the authorities in another 97 cases. The
CNDH had been unable to reach a conclusion on a further 160 cases, but the possibility of their “disappearance” should not be discounted in any future investigation.
[13]

The National Human Rights Commission stated that the
modus operandi
of the security forces during the “dirty war” was clearly illegal. It went on to describe the integration of the special task forces set up to carry out the task of persecuting the guerrillas (who had also committed illicit activities), namely the
Brigada Especial
or
Brigada Blanca
, composed of members of the
former
Dirección Federal de Seguridad
and aided by officials from other federal and state government agencies. Finally, it documented the impunity of these actions, by
making clear that despite the fact that these “disappearances” had been duly reported to the authorities by the victims' relatives, the Commission found no evidence that they had ever been investigated by the relevant authorities, thus violating the right to justice of the victims.
[14]
The report recommended that the President instruct the Attorney General to designate a special prosecutor for the investigation and punishment of these crimes, in order to ensure full respect for human rights in the future.
[15]

The ceremony was attended by the President, who received the report and the recommendations, the Minister of the Interior, the Minister of Defense, the Attorney General and other prominent members of his cabinet. In a highly
unusual move, Soberanes also handed Fox a closed envelope with the names of the alleged perpetrators of the crimes he had just described in detail, on the grounds that they were only suspects and he could not reveal their names in order to protect their good name and reputation. This was contrary to the usual procedure followed by the ombudsman, who always makes the names of alleged perpetrators of human rights abuse public and is mandated to do so by the law, without this giving rise to any liability.
[16]
Santiago Creel then proceeded to announce the creation of a special prosecutor's office to investigate these crimes.

The report received mixed responses on the part of civil society. The non‐governmental organizations that attended the presentation, agreed that the fact that the government had finally acknowledged
state responsibility in the practice of forced disappearances, after decades of official secrecy and denial, was of paramount importance. According to them, the report should be regarded only as a first step towards the truth, because the “truth” represented in the report was not enough. They stated that the full depth of the problem was still unknown, including the details of where many of the
desaparecidos
are
located. They also demanded that the revelation of the truth be followed by justice and reconciliation.
[17]

The leaders of the organizations representing the victims' families were the ones with the most reservations and doubts towards the report. The most critical were Rosario Ibarra, president of the
Comité Eureka
[18]
and the vice‐president of the
Asociación de Familiares de Desaparecidos de México
(AFADEM), Julio Mata Montiel.
Rosario Ibarra claimed that the only thing that the CNDH had done was to revisit the cases that
Eureka
had presented eleven years before and claim them as its own.
[19]
Julio Mata Montiel indicated the existence of more than 800 cases registered by AFADEM in the state of Guerrero alone and observed that the
CNDH had presented less than 600 cases for the whole country.
[20]

In contrast, the report was accepted quite well by the political elites. All the parties represented in the Congress, from right, left and center, had positive opinions about this particular modality for dealing
with the need to know the truth about the forced disappearances and finding justice for the victims, without seeking revenge. According to press reports, they all agreed that this was fundamental for political, institutional and ethical reasons.
[21]

Officially, the Armed Forces remained silent after the release of the report, but unofficially, military sources claimed that the Mexican Army as an institution had acted legally during the “dirty war” in the combat against the guerilla groups. The Army had protected the constitutional order of the country. The claim by the CNDH that some military bases, such as the
Campo Militar Número Uno
, had been used as detention and torture facilities for more than one and a half years, was absurd. There may have been some detentions, but the detainees were turned over to the corresponding authorities. They made it clear that in the event that there were concrete accusations against some members of the Army, and if the relevant authority verified their guilt, they would agree to the judicial consequences, but to judge an institution as a whole was unacceptable.
[22]

The Army kept its word. As we shall see later on, it accepted the legal consequences of the actions of some high‐ranking military officers during the “dirty war.” But it pre‐empted civilian justice by deciding to prosecute them under military law.

The Special Prosecutors' Office for the Attention of Matters Allegedly Related to Federal Crimes Committed Directly or Indirectly by Public
Servants Against Persons Linked to Social or Political Movements of the Past (
Fiscalía Especial para la Atención de Hechos Probablemente Constitutivos de Delitos Federales Cometidos Directa o Indirectamente por Servidores Públicos en Contra de Personas Vinculadas con Movimientos Sociales y Políticos del Pasado, FEMOSPP
) was the result of a Presidential Decree. It had full power to name and gather evidence against the perpetrators of human rights violations, including the
Tlatelolco massacre of 1968, the murder of student protesters by paramilitary gangs in 1971, and the cases related to the state sponsored “dirty war,” up to the recent past.
[23]

The Presidential Decree contained the framework of a transitional justice policy in Mexico. First, the President requested the Attorney General,
General Rafael Marcial
Macedo de la Concha to create a Special Prosecutor's Office (SPO). Second, the President requested that the Attorney General create a
Citizens' Support Committee to aid and offer advice to the Prosecutor. Third, the President ordered the Minister of Defense to ask the Military Prosecutor to provide the Attorney General with any information required to fulfill the functions mentioned in the Decree. Fourth, the Interior Minister was instructed to form an interdisciplinary committee to study, analyze and present proposals to determine the form of just compensation and reparation to the victims who were affected by the violence. Fifth, the President ordered the opening of tens of thousands of previously classified documents and records held by former secret service institutions, to be sent to the National Archive.
[24]

In the opinion of Paul Seils of the International Center for Transitional Justice, the request for the creation of the SPO was based on a number of relatively narrow factors. First, it relied on the exercise of federal jurisdiction regarding crimes allegedly committed by public servants. This means that in general the SPO will not deal with matters committed by public servants at the state level, ruling out of the investigation, for example, acts committed by the local state police. In addition, the investigations exclude the members of the guerrilla groups who were convicted and later granted an amnesty in 1978.
[25]
The SPO must also demonstrate a link between the victim and social or political movements, a task which may prove difficult and is dependent on the SPO's and the Court's interpretations, since the Decree offers no definition of these and no guidance on the criteria to be applied. In addition, the Presidential Decree did not state any exact time limit for the prosecution and investigation and did not explicitly mention the nature of the crimes to be investigated.
[26]

Prior to the release of the Presidential Decree, it had been agreed in the cabinet that Alberto Székely, a prominent environmental and human rights lawyer, and former Legal Advisor to the Ministry of Foreign Affairs, was to be designated Special Prosecutor under the authority
of the President himself. The
Citizen's Support Committee was to be staffed by respected members of the human rights community. In fact, some of them had already been invited and had agreed to participate. Upon learning that the Decree had been changed at the last minute, giving the nomination of the Special Prosecutor to the Attorney General, Székely declined the invitation and the candidates for the
Citizen's Support Committee followed suit.
[27]
This problem, which was not made public until much later, delayed the process of setting up the SPO. However, on January 4, 2002, almost two months after the Presidential Decree was issued, the Attorney General nominated an academic and former public servant, Dr.
Ignacio Carrillo Prieto.

After his nomination, Ignacio Carrillo began work on what he called the “Mexican solution” to deal with the human rights crimes of the past. In an interview with Kate Doyle, Head of the Mexico Project of the National Security Archives, he spelled out the terms of this enterprise by pointing out that truth, justice and
reparations all go together. “We cannot trade truth for justice. We cannot trade money for justice. The Mexican Solution is a very appropriate response to impunity, a new model,” he is quoted as saying.
[28]
In fact, the task that
Carrillo Prieto was assigned was not easy, and the Presidential Decree did not make it any easier, because it did not lay out clearly how the work of the SPO was to be carried out.