Credit: Daniel Cima/IACHR
The Mexican Congress has adopted a revision of the country’s Code of Military Justice to transfer jurisdiction over alleged human rights abuses committed by members of the armed forces against civilians to the ordinary, civilian justice system. [LA Times] Mexico’s military plays an important role in policing and law enforcement in the country, and although thousands of serious human rights abuses by soldiers are reported each year, the military overwhelming fails to hold its members accountable. See, e.g., Human Rights Watch, Military Injustice: Mexico’s Failure to Punish Army Abuses (2001); CMDPDH, Jurisdicción militar: Impunidad y violaciones a los derechos humanos (2013).
Legislative Changes
On April 30, 2014, the Cámara de Diputados voted unanimously to approve various reforms to the Code of Military Justice (see the previous version here, in Spanish). The most heralded change transfers jurisdiction over criminal investigations and prosecutions to the ordinary judicial system in cases concerning human rights abuses allegedly committed by members of the armed forces against civilians. Other changes include restricting military jurisdiction in cases involving minors, according to Mexican human rights groups. [Tlachinollan]
Human rights proponents and monitoring bodies, including the Inter-American Commission on Human Rights, have welcomed the long-anticipated reform, which represents an important victory for advocates and victims who have criticized the military justice system for failing to effectively investigate and punish perpetrators and for being difficult to navigate for civilians. [WOLA; Amnesty; IACHR; Tlachinollan]
The change improves Mexico’s compliance with prior judgments and recommendations from the Inter-American Court of Human Rights, Inter-American Commission on Human Rights, United Nations Committee against Torture, UN special procedures, and the country’s Supreme Court. See, e.g., SERAPAZ et al., Reformas al Código de Justicia Militar (2013). However, two important challenges remain: 1) ensuring meaningful compliance with the reformed code, and 2) expanding the civilian courts’ jurisdiction to include human rights abuses allegedly committed by members of the armed forces against fellow soldiers.
Incompatibility of Military Justice with Human Rights
In 2001, the Inter-American Commission on Human Rights issued a decision concerning the illegal detention, rape, and torture of three indigenous women by military personnel. See IACHR, Report No. 53/01, Case 11.565, Ana, Beatriz and Celia Gonzalez Perez (Mexico), 4 April 2001. In finding Mexico responsible for violations of the sisters’ rights to personal liberty, humane treatment, privacy, due process, and judicial protection, the Commission recommended that the State “[c]onduct a complete, impartial, and effective investigation, within the regular criminal courts in Mexico…” Id. at para. 96(1). At the time, Mexico responded by confirming that such investigations would be carried out by the military justice system. Id. at para. 97.
When Mexico again failed to comply with its recommendations in another case concerning human rights abuses by soldiers, the Commission referred the matter to the Inter-American Court of Human Rights. In 2009, the Inter-American Court found Mexico internationally responsible for various violations of the American Convention on Human Rights in connection with the forced disappearance of Mr. Rosendo Radilla-Pacheco at the hands of soldiers, affirming that “taking into account the nature of the crime and the juridical right damaged, military criminal jurisdiction is not the competent jurisdiction to investigate and, in its case, prosecute and punish the authors of violations of human rights but that instead the processing of those responsible always corresponds to the ordinary justice system.” I/A Court H.R., Radilla-Pacheco v. Mexico. Preliminary Objections, Merits, Reparations, and Costs. Judgment of November 23, 2009. Series C No. 209, para. 273. The Inter-American Court directed Mexico to “adopt, within a reasonable period of time, the appropriate legislative reforms in order to make Article 57 of the Code of Military Justice compatible with international standards and the American Convention on Human Rights.” Id., Operative para. 10.
In 2011, the Supreme Court of Justice of Mexico issued a decision identifying the State’s obligations for complying with the Radilla-Pacheco judgment, in which it confirmed that the State must restrict the military justice system to prosecuting members of the armed forces on active duty only for the commission of crimes of a military nature, and that it could not be used to prosecute human rights abuses against civilians. Suprema Corte de Justicia de la Nación, Expediente Varios 912/2010 (14 de julio de 2011), paras. 37-45. For additional information on the Supreme Court’s judgments on this topic, see its webpage on military justice (in Spanish).
However, while Supreme Court made clear that existing domestic law was incompatible with Mexico’s international human rights obligations, the legislature failed to adopt reforms until last month. In the meantime, Mexican legislators debated potential legislative changes, and human rights bodies continued to find the military’s prosecution of human rights abuses to be lacking. [WOLA]
For example, the UN Special Rapporteur on extrajudicial, summary or arbitrary executions, following his 2013 visit to the country, urged Mexico to, inter alia:
-
Take all necessary steps, within the short term, to ensure that public security is upheld by civilian rather than military security forces.
-
Amend the Military Justice Code in order to ensure that all violations of human rights allegedly perpetrated by the military be fully investigated, prosecuted and tried by civilian authorities. Immediate transfer of all cases should be ensured. Military prosecution services should not initiate investigations into human rights violations.
OHCHR, Preliminary Observations on the official visit to Mexico by the Special Rapporteur on extrajudicial, summary or arbitrary executions, 22 April – 2 May 2013, recs. 11 and 13.
And, the Inter-American Court of Human Rights issued three more judgments concerning the use of military jurisdiction to investigate and prosecute human rights abuses against civilians. See I/A Court H.R., Cabrera Garcia and Montiel Flores v. Mexico. Preliminary Objection, Merits, Reparations and Costs. Judgment of November 26, 2010. Series C No. 220; Rosendo Cantu et al. v. Mexico. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August 31, 2010. Series C No. 216; Fernandez Ortega et al. v. Mexico. Preliminary Objections, Merits, Reparations, and Costs. Judgment of August 30, 2010. Series C No. 215.
In its press release concerning the new legislation, the Inter-American Commission on Human Rights stated that it
welcomes this reform as an important step in the protection of fundamental rights in Mexico and in the fulfillment of the State of Mexico’s international human rights obligations, primarily regarding guarantees of the right to truth, justice, and reparation for victims and their family members
but took care to urge the State to “ensure that its legislation clearly indicate that the nature of right that has been affected should be the determining factor in establishing jurisdiction.”