On October 18, Mexican President Felipe Calderón sent Congress a proposed reform to the country’s “military jurisdiction,” in which the military investigates and tries all alleged crimes committed by active-duty soldiers. Mexican and international human rights organizations, the United Nations, and the Inter-American Court of Human Rights (IACtHR) have long criticized Mexico’s continued use of military jurisdiction to investigate soldiers’ alleged human rights violations, arguing that the practice promotes impunity. Under Calderón’s proposed reform, cases of torture, rape, and forced disappearance would be investigated and tried by civilian authorities, not military authorities.
Mexican human rights organizations criticized Calderón’s proposed reform as “absurd,” “incomplete,” “harmful,” and “a cosmetic gesture.” Opposition legislators have argued that the reform is designed to “simulate” compliance with a recent IACtHR ruling that ordered Mexico to investigate and try cases of soldiers’ alleged human rights violations in the civilian judicial system. Thirteen Mexican human rights organizations argued in an open letter that in reality, “Mexico would be no closer to complying with its international human rights obligations with this bill, including its duty to implement the binding orders of the Inter-American Court of Human Rights [IACtHR].”
The IACtHR case in question is Radilla Pacheco vs. Mexico. In its November 2009 decision in the case, the Court ruled that “regarding situations that violate the human rights of civilians, the military jurisdiction cannot operate under any circumstance.” The IACtHR gave Mexico until December 2010 to reform the Military Code of Justice accordingly.
Human rights organizations and Mexican opposition parties have identified various loopholes in the proposed reform that would allow the military to continue to police itself in human rights abuse cases. The fact that the reform will only send three crimes—torture, forced disappearance, and rape—to civilian courts has many organizations concerned that the overwhelming majority of human rights abuses committed by soldiers will stay in military courts. Human Rights Watch notes that out of all of the cases in which the Mexican government’s National Human Rights Commission [CNDH] ruled that the military committed “serious abuses” during the Calderón administration, only 5 percent of those cases involve torture, rape, or forced disappearance. “The remaining 59 cases, which include extra-judicial executions, sexual aggression, and cruel and degrading treatment, would continue to be investigated by the Military Public Prosecutor.”
Luis Arriaga, director of the Miguel Agustín Pro Juárez Human Rights Center, shares Human Rights Watch’s concern: “The most common crimes have been: physical aggression or torture, arbitrary detention, attack with a firearm, raid without a warrant, homicide, threats, harassment, robbery… When we consider the crimes committed by military personnel, we can see that the majority of them are not contemplated in the presidential initiative.”
Human rights organizations are concerned that even in cases of rape, torture, or forced disappearance, the charges could still be downgraded to keep the cases in military courts. Under Calderón’s proposed reform, the Military Public Prosecutor will still have the right to classify charges, allowing it to determine if the cases stay in military courts or go to the civilian system. The Military Public Prosecutor already has a proven track record of downgrading charges. For example, in October 2008, soldiers detained four men in Chihuahua. A CNDH investigation into the incident found that the soldiers “put them face-down on the ground, covered their eyes, tied them up with rope, inserted a broom handle in their anuses, and then tied them to a tree so that they would confess to participating in criminal acts.” Rather than charging the soldiers with rape or torture, the military is investigating them for “abuse of authority and sexual abuse.” Both crimes would fall under military rather than civilian jurisdiction despite Calderón’s proposed reform. In November 2009, soldiers detained two brothers from Chihuahua without a warrant. The men’s whereabouts are unknown. The CNDH ruled that soldiers disappeared the men, but the military invested the case as “abuse of authority,” not forced disappearance. Under Calderón’s reform, this case would also stay in military courts.
Calderón’s proposed reform also reportedly puts a statute of limitations on forced disappearances, a move that has Senator Rosario Ibarra livid. She argues that the Inter-American Convention on Forced Disappearances prohibits putting time limits on the investigation of forced disappearances. But Calderón’s proposal struck a personal cord for Sen. Ibarra: “My son, Jesús Piedra Ibarra, has been disappeared for 35 years. It is not right that they want to give the soldiers [who kidnapped him] impunity.”
Human rights organizations are now focused on pressuring Congress to use Calderón’s proposed reform as an opportunity to democratically legislate the Military Code of Justice for the first time ever. The Military Code of Justice, which establishes military jurisdiction, has remained virtually unchanged since 1933, when then-President Abelardo Luján Rodríguez—a military general who was appointed president without an election—decreed the Military Code of Justice without Congressional debate or approval.
Despite having Calderón’s proposal for nearly a month, the Senate has not had a single meeting on the reform, nor can it estimate when it will get around to debating the issue. Opposition Senator René Arce blames the delay on the military’s omnipotence: “The political parties fear the Armed Forces like they fear the Virgin of Guadalupe.”