Transitional Justice in the Twenty-First Century: Beyond Truth versus Justice (21 page)

In September 2003, the Army made its first move to acknowledge its responsibility for the human rights violations committed during the dirty war, when it announced an arrest warrant for Generals Mario Arturo Acosta Chaparro and Francisco Quirós Hermosillo and Major Francisco Javier Barquín, accused of the homicide of 143 people who
disappeared during the 1970s. The three of them are presently in prison on charges related to drug trafficking. Apparently, in the course of the inquiry, a protected witness and former military pilot, gave evidence that they had detained more than a hundred peasants and held them in the military barracks of Pie de la Cuesta, close to Acapulco, from where they were thrown into the ocean in helicopters belonging to the Air Force.
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The military prosecutor immediately began proceedings, although in fact, according to the constitution, the case should have been dealt with by civilian authorities.
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Sadly, this first move of acknowledgment proved
to be a failure. The Supreme Military Tribunal ruled that because of lack of evidence the three officers could only be tried for the deaths of 22 persons. In July 2004, a military judge exonerated Acosta Chaparro because of “loss of documents.” The
other two perpetrators were to be released with the same excuse.
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Although
Carrillo Prieto and the military prosecutor appear to be fighting the same battle to bring perpetrators of crimes against humanity to justice, there are fears that the simultaneous use of the two parallel systems is leading to impunity. Serious cases of human rights violations against civilians involving members of the Mexican armed forces such as the one described above should be under the jurisdiction of the SPO instead of the military.

Military tribunals are separate from civilian courts in Mexico. Ordinary practice has been that cases concerning members of the Armed Forces are immediately turned over to the military prosecutor's office. According to a novel constitutional interpretation by former federal Attorney General
Rafael Macedo de la Concha, military personnel cannot be tried in civilian courts for human rights abuses committed against civilians.
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This position was reinforced by the reservation prompted by the military,
PRI and conservative members of
PAN to the ratification of the Inter‐American
Convention on Forced Disappearance of Persons in 2002 by the Senate.
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It is well‐known that the Mexican military have a tradition of protecting their own and have allowed abuses to go uninvestigated and unpunished. Furthermore, the military justice system lacks the necessary independence to carry out reliable investigations, and its operations are not transparent.
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For example, the Code of Military Justice states: “In the cases where its importance requires it, the prosecutor should request instructions from the Secretary of the Military and Navy.”
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Amnesty International has observed that in investigations in the military justice system, access to the case file is virtually impossible.
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Some NGOs have demanded that the SPO take a more active role in confronting its difficulties with the military prosecutor's office.
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Almost three years have passed since the creation of the SPO and criticism of its meager results has grown stronger. The media and civil
society, especially several international human rights organizations and institutions are keeping close watch on the ongoing process to bring past human rights crimes to justice. Although the Citizen's Support Committee has failed to live up to most of its expectations, it is planning a report called “The White Book” in an attempt to tell the truth about the repressive policy that involved the various agencies and institutions of the State during the “dirty war”. The intention of this report is to give Mexican society and new generations an objective vision of the past, and in this way play something of the role of a “truth commission”, focusing on overall patterns and responsibilities. So far, however, there is no clear indication that this “White Book” is seriously under way.
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Perhaps the media, both Mexican and international, have been the most active actors in publicizing and keeping the public in touch with the “dirty war” and the prosecuting process. The Mexican newspapers carry abundant reports and statements about the “dirty war”, the SPO and the role of the military. Although a democratic opening in the Mexican press started in the 1970s, it took three decades for
El Universal
, one of the main Mexican newspapers, to publish for the first time twelve shocking pictures of the 1968
Tlatelolco massacre. The newspaper timed the publication of the photographs with the opening of the Special Prosecutor's Office in February 2002.
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Undoubtedly
Proceso
, a widely respected weekly news magazine founded in 1976 by a group of former journalists after they were ousted by President Echeverría from the newspaper
Excélsior
, is the most faithful follower of the SPO. Julio Scherer, its founder, has even written a book, co‐authored with Carlos Monsiváis, one of the country's leading commentators, with some of the material gathered by the SPO.
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Mexican civil society organizations, especially human rights activists and members of the victims' organizations were, and still are, very suspicious of the SPO. The motives and arguments vary according to their composition. Human rights NGOs claim to have preferred a truth commission and have voiced their doubts about the creation of a special prosecutor, alleging the incompetence and failure of many of the special prosecutors nominated to investigate diverse crimes in the past decade.
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They do not seem to think that the process of democratization has made much of a difference in this matter. Instead, human rights groups have turned to the Inter‐American system as their strategy of choice for dealing with the past. Cases now pending include several within the mandate of the SPO.

The victims' groups are more divided. Some have cooperated with the office and are awaiting results.
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Others, like
Comité Eureka
, headed by
Rosario Ibarra de Piedra, mother of Jesús Piedra, claim that the relatives
of the disappeared do not believe in
truth commissions or in special prosecutors.
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AFADEM
(Asociación de Familiares de Desaparecidos de México
), made up mostly of rural victims of the “dirty war” and its sequelae in Guerrero cooperated at first with the SPO. They approved of the establishment of a subsidiary office of the SPO in the town of Atoyac and supported the victim's families who brought denunciations to the SPO, but they were reluctant to fully endorse
Carrillo Prieto's office. After three years they are extremely critical.

In February 2003, one year after the nomination of
Carrillo Prieto, sixteen human rights NGOs signed and released a document that strongly criticized the creation, goals and methods of the SPO.
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In October 2003, a second report was released and presented to the Inter‐American Commission of Human Rights at its 118th session. Its criticisms can be summed up as follows: the SPO is not an independent entity since it is an organ of the
PGR; it is working with limited resources and insufficient personnel; the SPO is reporting poorly on its activities and results; it has not persisted in its effort to reclaim the cases that are in the hands of the military courts; and finally, the SPO was created without a process of political dialogue, which would have created social support for the organization.
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International organizations and institutions, both governmental and non‐governmental, have been more nuanced in their critiques.
Amnesty International and Human Rights Watch have released reports criticizing the SPO and the military justice system for their lack of results in the prosecution of perpetrators of crimes during the “dirty war”. In 2003, Human Rights Watch especially criticized the Fox administration and the military for not providing the SPO with the support it needed to carry out its mandate.
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The International Center for Transitional Justice (ITCJ) has participated in the work of the SPO since the beginning. In April 2003, ICTJ staff members visited Mexico and discussed an agreement with the Special Prosecutor and his staff, which resulted in a technical assessment of the SPO, and released a report which is cited extensively in this chapter.

Is the glass half empty or half full? It is obvious that the consolidation of democratic rule in Mexico is a slow and halting process. It is also clear that the Fox government misread the election results and has lacked the strength and political will to rally the forces that would have helped it to overcome the enormous and active resistance to change posed by the
PRI establishment and its allies, who continue to have a considerable hold on power and on the institutions of the justice system.

Early on, the human rights policies laid out by the most progressive elements in the newly formed democratic government, led by Jorge Castañeda and Adolfo Aguilar Zinser, were supported by the President but never really protected from the powerful interests which they directly threatened. When Aguilar Zinser was nominated to another post and Castañeda stepped down, these policies floundered and lost their intention and thrust.

The original strategy for transitional justice was reduced to the creation of a Special Prosecutor's Office lacking the necessary autonomy and resources to perform its task. Organized civil society – with the exception of a few groups of survivors, political activists and demobilized guerrillas of the 1960s and 70s – has never really been consulted and has not become part of the process of designing and producing the mechanisms for transitional justice that the country needs. On the other hand, the current members of most of the human rights organizations belong to a generation who did not suffer the repression of the “dirty war”, so they have no way to gauge the importance of the SPO, however meager its results. The victims' groups, with the notorious exceptions already mentioned, have tried to cooperate. They found themselves without the necessary support from either the Prosecutor's Office or the human rights community. The fact that it took two years for Carrillo Prieto to make his first arrest has frustrated them. So they have decided to keep their distance and criticize the process from afar.

The end result has been that at every stage of the process, the strategy for transitional justice seems to have been systematically diverted from its original intent by the powers that be. The project for a truth commission was shelved as a response to pressures from the
PRI and the more conservative elements of Fox's own party. Hence the role of the National Human Rights Commission – discredited from the start by its previous lack of interest in the matter – which was called into action and asked to report on the crimes of the “dirty war”. The report was a good one, but the Commission kept the names of the alleged perpetrators secret, adding to the mistrust of the victims. The former Attorney General maneuvered at the last moment to keep the Special Prosecutor's Office under his control with the consequences that we have seen. The military paid lip service to the project, but have dragged their feet since then, especially when asked to cooperate. Besides, they continue to hold on to their unconstitutional privilege to prosecute and judge their own when they have committed crimes against civilians. The majority of the members of the Senate have also contributed to this chain of events by
ratifying international instruments designed for dealing with crimes against humanity with reservations which weaken their thrust, almost without a murmur.

Despite everything, one cannot claim that there have been no advances. The Special Prosecutor is daring, he works hard, and he is imaginative and brave. The media inform the public regularly on the performance of the SPO. The international community, especially the NGOs, continue to monitor and lend their critical support to the effort. And last but certainly not least, the Supreme Court has, so far, largely produced enlightened decisions, which have allowed the Special Prosecutor to navigate the difficulties and pitfalls of the domestic legal system. Slowly, slowly, the process has taken hold of the country's consciousness, and even recalcitrant objectors,
like Rosario Ibarra, have grudgingly conceded some positive results.

Obviously, the continuing legal fight on the culpability of former President Echeverria in the commission of
genocide will determine the future of the Special Prosecutor and his Office. It is difficult to envisage him continuing to work as if nothing has happened if the courts do not rule in his favor. The political backlash would be enormous. It is probable that his Office would continue to exist, but under the direction of a lesser figure, one who would let it wither away and die, in the manner of previous special prosecutor's offices. The choice to focus
on genocide, rather than, say, the 500‐plus disappearance cases, was therefore a risky one.

But even if
Carrillo Prieto were to succeed in convicting a powerful ex‐President, with unforeseen consequences, the problem of the path taken by the Fox government for dealing with the crimes of the past lies in the difficulties faced by the SPO for delivering the rest of the elements that are required in a strategy of transitional justice. It is one thing to arrive at the legal truth of the crimes that the SPO is prosecuting, and quite another to reconstruct the historical truth of the systemic nature of these crimes. That truth is to be discovered still, and the
Citizen's Support Committee of the Special Prosecutor, which some of us mistakenly took for a viable alternative to a truth commission,
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has so far proven its total inability to undertake such a task. In the present political context, it is difficult to envisage that this will be accomplished in the near future, given the strength of resistance to initiatives of this nature and the lack of a strong demand from organized civil society.