WOLA: Advocacy for Human Rights in the Americas

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28 Jun 2018 | Commentary

The First Year of Work of the Special Follow-Up Mechanism for the Ayotzinapa Case

On June 6, 2018, the Inter-American Commission on Human Rights (IACHR) issued a performance report on the work of the Special Follow-Up Mechanism for the Ayotzinapa Case. This mechanism was established based on an agreement between the Commission, the families of the 43 disappeared students and their legal representatives, and the Mexican government in July 2016 to follow up on the work done by the Interdisciplinary Group of Independent Experts (Grupo Interdisciplinario de Expertos Independientes, GIEI).

The Follow-Up Mechanism began operating in November 2016. Through this work, IACHR commissioners, the Commission’s executive secretary, and its technical team have carried out technical and officials’ visits to Mexico, working meetings, and public hearings held during the IACHR’s sessions. They have also received information from the Mexican government and the legal representatives of the students’ families.

At the press conference to release the report, Commissioners Esmeralda A. De Troitiño and Luis Ernesto Vargas Silva recognized the Mexican government’s acceptance of their recommendations on the case, their proposed measures to move the investigation forward, and the progress that has been made on several aspects of the investigation.

The commissioners also highlighted the importance of a May 31 Mexican federal tribunal ruling that decided not only on the application for constitutional relief (amparo) by nine of the individuals detained in the case of the disappeared students, but also in favor of the constitutional rights of the families of the disappeared students who were victims of grave human rights violations.

The commissioners welcomed this ruling, which calls for the creation of an Investigative Commission for Truth and Justice (Comisión de Investigación para la Verdad y la Justicia) to continue the Ayotzinapa investigation, as a path forward in the case. In a new commentary, WOLA details the importance of the federal tribunal’s ruling and its call for this new investigative commission.

During the presentation of the performance report, the IACHR also called on the Mexican government to change the narrative about the case, given the overwhelming evidence that their theory that the students’ were taken to a local trash dump and killed is not backed up by scientific evidence. In the words of Commissioner Vargas Silva, “the supposed historic truth [about the case] has been buried.”

The Commission recommended that the Mexican government continue to search for the students and provide assistance to the victims, including the injured students Édgar Andrés Vargas and Aldo Gutiérrez Solano. In terms of the Mexican government’s investigation into the students’ disappearances, the Follow-Up Mechanism found the following:

There have been few arrests of additional suspects in the case:

While some additional suspects have been detained, there are several outstanding arrest warrants in the case that the Mexican government has failed to carry out. The Commission further noted that there have been no new arrests for acts or omissions by Guerrero state authorities who may have had some level of involvement on the night of the students’ disappearance.

The report also calls for the continued investigation into the participation of other municipal police forces from towns other than the forces in Iguala, Cocula, and Huitzuco, whose involvement has already been evidenced.

The need to further investigate the role of the Federal Police and clarify the role of the Army:

In its reports, the GIEI had recommended investigating Federal Police agents’ failure to protect the students and their possible participation in the acts, as well as their role in escorting one of the buses (the fifth bus) outside of Iguala the night the students disappeared.

The report notes that although three Federal Police officers believed to have been working for Guerreros Unidos were indicted for crimes related to organized crime, unlawful conduct, and other crimes, federal courts have rejected this indictment and the federal Attorney General’s Office (Procuraduria General de la Republica, PGR) is currently appealing the decision.

The report also recommends that the Mexican government provide more details into the sudden transfer of all Federal Police agents stationed in Iguala on October 10, 2014, shortly after the students’ disappeared, and to investigate the chain of command of the Federal Police when the events occurred.

The Commission also reviewed the PGR’s interviews with a number of military personnel and noted several contradictions in the interviews and the need for follow-up questions. The Follow-Up Mechanism also pointed to the need to clarify the damages to the hard drive on the computer that had the original photographs taken by military personnel during the students’ disappearance and to further investigate alleged connections between members of the Army’s 27th Battalion and arms trafficking.

Drug trafficking and international legal assistance:

The Commission notes that the Mexican government is investigating a number of bus companies that were allegedly used to traffic drugs or money between Mexico and the United States and that could be related to the students’ disappearance.

Through a Mutual Legal Assistance Treaty (MLAT) with the United States, staff from the Follow-Up Mechanism were able to review information the U.S. Department of Justice provided to the PGR regarding the indictment of eight members of Guerreros Unidos who used buses to transport heroin to Chicago.

However, they note that they were not able to obtain a copy of these documents and that they were limited to reviewing transcripts of text messages of two members of Guerreros Unidos, including the alleged leader of the cell in Chicago, Pablo Vega Cuevas, on the dates close to the time that the disappearances occurred.

The Commission reiterated the importance of continuing to investigate the use of buses in cross-border drug trafficking operations, as well as the Guerreros Unidos’ connections in both the United States and Mexico.

The need to further investigate allegations of torture:

The Commission noted with surprise “that in 12 of the 17 cases in which the GIEI determined that there had been serious signs of torture, the PGR concluded to the contrary.” The IACHR also highlights a March 2018 report released by the Mexico Office of the United Nations High Commissioner for Human Rights (OHCHR-Mexico), Double Injustice, which examines human rights violations that occurred in the investigation into the students’ case. The OHCHR gathered information indicating possible acts of torture in 51 cases of individuals prosecuted in relation to the case, finding strong evidence of torture in 34 of the cases analyzed.

According to the Commission, “there is a startling difference between the positive cases of torture established by the PGR, on one hand, and OHCHR-Mexico and the GIEI, on the other. Such a discrepancy in findings warrants a thorough analysis. Furthermore, the Commission is also troubled by the fact that in both confirmed cases of torture the PGR has not taken criminal action against anyone responsible.”

The Commission also highlights the need to investigate the death of Emmanuel Alejandro Blas Patino as the OHCHR report indicates that he “appears to have died as a result of torture inflicted by elements of the Secretariat of the Navy (Semar) who reportedly took part in his arrest.”

Through interviews with detainees, witnesses, and authorities, as well as analyzing judicial files and medical records of physical injuries sustained by the detainees, the OHCHR identified in its report “a consistent pattern of human rights violations and an almost uniform modus operandi regarding how people were arbitrarily detained and tortured to extract information or confessions, and how there were significant delays in bringing detainees before a public prosecutor, thereby placing them outside the protection of the law.

The types of torture found by the OHCHR include electrical shocks, sexual assault and rape, threatening to kill the detainees and their family members, boxing the ears, placing a plastic bag over a suspect’s head to simulate asphyxiation, and waterboarding.

Possible obstruction of justice in the investigation:

The Commission noted that the GIEI’s second report found several irregularities in the procedures carried out by Mexican federal officials in the San Juan River where a bag containing a bone fragment of one of the students was found. These included the “unlawful movement of a detainee who was questioned without his defense lawyer present [and] signs that that detainee was tortured while in custody.”

As is also documented in the OHCHR report, the original internal investigation into the allegations of obstruction of justice within the PGR’s Internal Oversight Office concluded that seven people had been unlawfully detained and that the Special Prosecutor’s Office for Investigating Organized Crime (Subprocuraduría Especializada en Investigación de Delincuencia Organizada, SEIDO) within the PGR was responsible for unlawfully detaining and handing over a suspect, Agustín García Reyes, and for taking him to the San Juan River without his lawyer on October 28, 2014.

The original investigation also determined “the responsibility of the then-director of the Criminal Investigation Agency of the PGR for engaging in investigative acts without the supervision of the Public Prosecution Service; breaking of the chain of custody, and failure to formalize proceedings in violation of the right to truth.” After the original inspector was forced to resign and threatened, the Commission highlights that the final report, issued by a new inspector in December 2016, eliminated the main findings of the initial resolution and found the government’s faults in the investigation to be minor.

In February 2017, the students’ families filed an application for constitutional relief (amparo) so that the courts might determine if the resolution of the Internal Oversight Office was comprehensive and that it conformed to the highest standards, but Mexican courts have not reached a final decision for this amparo.

Use of spyware:

The IACHR noted its concerns regarding the fact that the representatives of the families and members of the GIEI had been a target of spying and called on the Mexican government to investigate any links between government officials and the illegal use of spyware.

Next steps 

The Follow-Up Mechanism will continue its work until December 2018. Given the Mexican government’s efforts to challenge and delay the implementation of an Investigative Commission for Truth and Justice as it stipulated in the federal Mexican tribunal’s ruling, it is too soon to know how the Follow-Up Mechanism will collaborate with this Commission and if the GIEI will have a role in this new stage of the investigation.

Nevertheless, the Mechanism has again made clear during the first 18 months of its work the importance of international supervision of the Mexican government’s efforts to investigate the enforced disappearance of the 43 students and of the many shortcomings and human rights violations that have taken place in the context of the federal investigation.

Without ongoing international oversight and the persistence of the students’ families, it is clear that the Mexican government would have closed this case years ago—and with it, the victims’ families right to truth and justice.