Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (20 page)

Although this “Mexican solution” in the form of a Special Prosecutors Office was the first of its kind in Latin America, it is not unique. There have been other experiments of a similar kind.
[29]
However, only limited efforts were made to consult about the possible structure of the SPO, and because of that, it missed an opportunity to learn from past mistakes at an earlier stage.
[30]

In March 2002, the newly chosen Special Prosecutor introduced the five members of his
Citizens' Support Committee to the public. These were drawn mostly from academia, survivors of the
Tlatelolco massacre of 1968 and former guerrillas. He also presented his Action Plan for the new office.

The Action Plan for the Office of the Special Prosecutor contains five programs with 64 activities. It is divided into three main areas (
ejes
):

1. 1. Legal investigation
   

2. 2. Information and analysis
   

3. 3. Cooperation, citizen participation and institutional relationships
   

The objective of the legal investigation area is to consolidate investigations, centralize the cases under federal jurisdiction and support bringing criminal cases before the corresponding courts. It comprises three different programs and one sub‐program, dealing with
forced disappearances, 1968–71 massacres, 1990s massacres, and legal problems. Altogether these programs have more than 1,000 cases under investigation.

The area of information and analysis gathers and analyzes historical evidence in order to clarify how the crimes of the past were linked to social and political movements. Finally, the area of cooperation, citizen participation, and institutional relationships is intended to take care of the needs of victims affected by the violence and repression. It also cooperates with human rights organizations, academic institutions and professional groups. This program also has a sub‐program, dedicated to the dissemination of information on the activities of the SPO.

The
Citizens' Support Committee mentioned in the Presidential Decree does not have a clear mandate. It is made up of experts in the fields of law, history and social sciences, and offers advice and support to the SPO. The Committee started its work with five people and in 2003 was enlarged to sixteen after the Prosecutor complained of lack of support. The objective of the Committee is to monitor the work of the SPO and denounce it if it does not complete its mission. Its main function is to give a voice to the victims, the citizens, and to society at large.
[31]
The Interdisciplinary Committee or working group mentioned in the Presidential Decree, charged with presenting proposals for the reparation of the abuses investigated by the SPO, has not been
established to date.

The SPO began work with 40 to 50 individuals. However, in late 2003, in the wake of the publication of a critical report by Human Rights Watch on the performance of the SPO
[32]
and of the scandal created by the closure of the Deputy Ministry for Human Rights and Development,
[33]
the Special Prosecutor obtained more support and the number of personnel was increased to more than 100 individuals. The SPO presently has over 170 officials and most of them (at least 50 investigators) are working in the Legal Investigations Programs.
[34]

When one reads the reports published every 100 days by the Special Prosecutor's Office with all the details of the work they have accomplished during nearly three years, it is difficult not to be impressed with the sheer size of the office's workload. According to their latest statistics, the SPO's investigators have, for example, started almost 500 new inquiries and conducted hundreds of interviews with the families of victims. They have also organized thousands of pages of unclassified documents and studied them. Most of the investigation resources are
concentrated in high profile cases of the 1960s and 70s, with the rest investigating the alleged 662 homicides of
PRD
supporters in the early 1990s, which are almost half of the cases in the SPO.

After
Carrillo Prieto accepted his post as the head of the Special Prosecutor's Office, he stated that he would bring to justice all of those responsible, despite the positions they had held in government during the “dirty war.”
[35]
He certainly proved to have the will to do it, but he seemed to have underestimated the huge obstacles that he and his office were going to face in the months and years to come. Unfortunately, convictions of alleged perpetrators, in other words, the concrete results that people are waiting for, are still lacking. Only eight arrest warrants have been issued as a result of the hundreds of cases investigated, and only
Miguel Nazar Haro, former head of the infamous
Dirección Federal de Seguridad
, is in detention awaiting trial.

There are many reasons for the slow progress. which does not seem to depend on the political will of the Prosecutor, but rather on the structural obstacles and financial difficulties that his office is facing. First, building court cases is a time‐consuming process. Despite having expressed a new attitude and new commitment to human rights, the army is not yet fully cooperative. It still hides or withholds information and refuses to give crucial names or data. It still loses archives or it does not have time to look for them.
[36]
The
Archivo General de la Nación
(AGN), or Mexican National Archives, holds an astonishing collection of millions of documents and files useful for these criminal investigations. Almost half of the documentation was obtained from the
Dirección General de Investigaciones Sociales y Políticas
(General Directorate for Social and Political Investigations), a twin of the infamous
Dirección Federal de Seguridad
, and moved to the AGN in 1994.

Unfortunately though, the AGN failed to create any kind of index or system to help the investigators in their search for documents. It took over 18 months for the SPO investigators to organize the documents they needed.
[37]
Researchers are forced to submit a written list of documents of interest held in the AGN, and then trust that the archive staff will identify and locate them, all of which causes delays.
[38]
Many investigators complain of arbitrariness, and fear that the Ministry of the Interior may be monitoring the use of the records.

Second, since its creation there have been severe internal conflicts inside the SPO that have affected its performance and working conditions. In the short lifetime of the institution, there have been constant, and at times turbulent, personnel changes. Third, the slow process of convictions is obviously still very much dependent on the political will of the members of the justice system, and of the President, who has
declined to give enough political support and resources for this process. As criticism of the SPO's achievements has mounted, the Prosecutor himself has revealed that
President Fox did not, for example, provide the promised funding for the exhumation of suspected mass graves in the southern state of Guerrero.
[39]
According to officials, there is not enough funding to hire a new Director of Psychological Support for the Victims, which is of great concern since aid for the victims and the
reparation of damage is one of the most important tasks that the SPO was ordered to accomplish. Moreover, the SPO depends financially on the Attorney General's office or
Procuraduría General de la República
, raising serious doubts about its autonomy despite protestations of support from the former Attorney General.
[40]

Fourth, there is a powerful political opposition to the SPO. For example, two arrest warrants issued by the SPO have not been carried out, a fact denounced by
Carrillo Prieto himself. Last but not least, the SPO has had to fight against the Mexican justice system, notorious for its long history of corruption and incompetence.
[41]
Despite this, prosecutions are slowly moving forward and the SPO has managed to win and lose a few significant court cases. In March 2003, the Special Prosecutor's Office first attempted to indict former officials of the
Dirección Federal de Seguridad
on charges of
forced disappearance, illegal detention and kidnapping in the case of
Jesús Piedra Ibarra, a guerrilla allegedly kidnapped by police and intelligence agents in Monterrey in 1975. He has never been found. The federal judge refused to issue arrest warrants, arguing that the statute of limitations had expired. The SPO appealed to the Supreme Court, and in November 2003 the Supreme Court unanimously rejected the ruling of the federal judge. It ruled that the statute of limitations did not apply to kidnapping as long as the victim was missing, giving federal prosecutors the ability to charge former government officials responsible for “dirty war” disappearances with that crime.
[42]

After the Supreme Court ruling, in December 2003 a judge issued an arrest warrant against three former officials accused of participation in the enforced disappearance of Jesús Piedra Ibarra. In February 2004, the federal authorities finally managed to arrest Miguel
Nazar Haro in Mexico City. He was held for several months in the Topo Chico prison of Monterrey awaiting trial, and has recently enjoyed the benefit of house arrest given his advanced age and deteriorated state of health. The two other suspects in the case, Luis de la Barreda Moreno and Juventino Romero Cisneros, remain fugitives. In the spring of 2004, the Mexican authorities issued five arrest warrants for suspected perpetrators of the enforced disappearance in 1975 of Ignacio Salas Obregón,
founder of the
Liga Comunista 23 de Septiembre
, but to date only Nazar Haro has been captured.
[43]

In June 2004,
Ignacio Carrillo Prieto won another significant case. In a ruling similar to its decision on kidnapping of December 2003, the Supreme Court stated that cases of forced disappearance by state authorities could be prosecuted if the victims
were still missing,
[44]
even if the disappearance occurred before this crime became a part of Mexico's criminal code in 2001. Prior to this ruling, charges of enforced disappearance could not be applied to the hundreds of cases of victims who vanished three decades ago. Instead, those cases could only be tried as kidnappings, a lesser charge which carries a sentence of six months to three years, rather than 15 to 40
years for forced disappearance.
[45]

A month later, the Special Prosecutor put the nation's judicial system to the test once more. In a bold and surprising move, he charged former President Luis Echeverria, two of his former aides, three army generals, and a few other officials with
genocide for the intent to destroy a national group in the massacre of at least 25 student protesters on Corpus Christi day in June 10, 1971.

The Special Prosecutor pressed the charges of genocide because, under existing laws, there was apparently no other way around the statute of limitations in massacre cases. The case presented against Echeverria and his associates was enormous: 9,382 pages of evidence and testimony. The following day, a federal judge threw out the request for an arrest warrant without reading all of the evidence presented to him, simply deciding that the 30‐year statute of limitations had passed. After this ruling,
Carrillo Prieto appealed once more to the Supreme Court, arguing that the genocide charges should stand because the
PGR had investigated the case in the year 1982, interrupting the running of the statute of limitations. In June 2005, the Supreme Court ruled that in Echeverria's case the statute had been tolled by official immunities, although for a number of other defendants the charges were dismissed on grounds that no immunity ever applied and that Mexico only ratified the treaty making
genocide imprescriptable in 2002, years after the events at issue. The case now returns to the lower courts, where it faces an uncertain future. The Special Prosecutor has indicated several times that if he fails with the courts he will take this case to the Inter‐American system.
[46]

In the interim, criticism of Ignacio Carrillo Prieto and of the SPO has grown stronger and more strident. The
PRI leadership issued a press release announcing the creation of a panel of distinguished jurists and members of the party to contest the case. Among those jurists was Sergio
García Ramírez, former Prosecutor of Mexico City in 1971 when the massacre occurred, and at the time President of the Inter‐American Human Rights Court. After much prodding from the press, García Ramírez denied his intention to form part of such a panel. The Secretary of Defense, General Ricardo Clemente Vega, stood up in a graduation ceremony of the Defense Academy and made a strong speech asking for forgiveness and “pardon” of the military. He subsequently attempted to tone down this statement, which caused a strong impact coming as it did from a four‐star general and Secretary of Defense.

Even
President Vicente Fox seems to have distanced himself from the Special Prosecutor. He recently stated in an interview that if
Carrillo Prieto suffers a defeat in the Supreme Court, the President would then consider, once more, the possibility of creating a truth commission.
[47]
The Special Prosecutor immediately opposed the idea of a
truth commission and said that: “With a truth commission, governments make a pact with the Devil. Our office looks for ways to send the Devil to jail.”
[48]
A few days later, a more subdued Carrillo Prieto said that if it comes to the creation of a truth commission, it will operate inside the SPO and it will handle only those cases which cannot be judged in the Mexican justice system.
[49]

The Office of the Special Prosecutor is not the only institution investigating past abuses. In fact, under an ad hoc mechanism agreed to between the Ministry of Foreign Affairs and the Inter‐American Human Rights Commission in 2001, several state prosecutors' offices are also investigating crimes of the past under the supervision of this body. Among these are some cases in the military prosecutor's office.