Over a decade has passed since the Mexican government began to deploy soldiers across the country to patrol streets and crack down on organized crime. Despite rising violence and evidence that human rights violations committed by the Mexican armed forces have gone largely unchecked, soldiers continue to participate in public security operations. Mexico now finds itself at a crossroads as its Supreme Court will review the constitutionality of the controversial Internal Security Law that would formalize and expand the role of the armed forces in domestic law enforcement.
Despite widespread criticism, Mexico’s Internal Security Law (Ley de Seguridad Interior) came into effect on December 22, 2017. Under an ill-defined concept of “internal security,” the law grants the military unchecked power to design and implement security policies in Mexico, from identifying domestic security threats to leading security operations and collecting information from civilian institutions.
In granting broad powers to the military without adequate civilian oversight, the law represents Mexico’s broader failure to develop policies that would strengthen civilian police forces and return soldiers to their barracks.
Instead, the law expands the role of the military in responding to civilian protests and gathering intelligence, and increases their involvement in the investigation of crimes within Mexico’s adversarial justice system.
United Nations bodies, the Inter-American Commission on Human Rights (IACHR), Mexico’s National Human Rights Commission (Comisión Nacional de los Derechos Humanos, CNDH), human rights organizations, and security experts all urged Congress and President Enrique Peña Nieto to reject the Interior Security Law. Victims of military abuse and Mexican civil society groups have also vehemently spoken out against the law; to date, a Change.org petition requesting the Mexican government to reject the law has received over 467,000 signatures. Nevertheless, Congress approved the Internal Security Law in December 2017.
Although Mexican government officials argue that the law will provide a legal framework for what the armed forces have been doing for over a decade, concerns abound precisely because the law would legalize what was intended, at least in government discourse, to be a “temporary” measure. And while President Peña Nieto announced that he would not enforce the law until it had been reviewed by Mexico’s Supreme Court, the Mexican Foreign Ministry has already instructed the country’s diplomatic corps to promote the law abroad.
The law currently faces significant pushback domestically, and has received an unprecedented number of constitutional challenges (both facial and as-applied). Among those who have filed challenges are the CNDH; the Mexico City Human Rights Commission (Comisión de Derechos Humanos del Distrito Federal, CDHDHF); the National Institute for Transparency, Access to Information and Protection of Personal Data (Instituto Nacional de Transparencia, Acceso a la Información y Protección de Datos Personales, INAI); the municipality of San Pedro Cholula, Puebla; the municipality of Hidalgo del Parral, Chihuahua; a group of 44 senators; and 188 members of the lower house in Congress. The Supreme Court will continue to receive constitutional challenges until February 6.
Based on the challenges filed against the law in court thus far, there are five key arguments for rejecting the law:
The Internal Security Law does not set forth adequate accountability mechanisms for soldiers that commit abuses and human rights violations when enforcing the law. This is a serious oversight, as Mexico’s record shows it is extremely difficult to effectively investigate and sanction soldiers responsible for abuse.
Despite the 2014 legal reforms that grant civilian authorities the power to investigate soldiers implicated in human rights violations against civilians, a Washington Office on Latin America (WOLA) report showed that 97 percent of the abuses that are investigated go unpunished. The Internal Security Law does nothing to reduce this impunity, or to correct the legal and political shortcomings that have impeded civilian authorities’ ability to carry out successful investigations and prosecutions against soldiers. The law only contains general statements regarding respect for human rights, including a provision requiring that Congress and the CNDH be informed when soldiers are deployed to carry out actions related to “internal security.”
Moreover, the law grants the armed forces—and not civilian authorities—the authority to lead “internal security” operations, failing to establish procedures for civilian authorities to oversee the actions that soldiers carry out during those operations. This is concerning because Mexico is one of the few countries in the region without a civilian defense minister, and the Mexican government has not established strong mechanisms to ensure full civilian control over the military (the Mexican Congress’ main oversight role of the armed forces is approving their budget). The Internal Security Law would grant additional power and discretion to the armed forces to act with even more autonomy and opaqueness.
The law expands the military’s ability to gather intelligence and information from civilian authorities. Additionally, it raises the worrying possibility of expanded military actions over civilian institutions by granting the armed forces the power to request information from them and become involved in civilian criminal investigations. WOLA’s report shows that “normalizing” the military’s role in the civilian judicial system is troublesome and soldiers may not be suited to have a role in civilian investigations of crimes particularly when they are accused of being the perpetrators of human rights violations. The CNDH has documented numerous cases of military abuse where soldiers either gave false testimony or altered the crime scene, including by planting weapons and drugs or by moving victims’ corpses.
The law also grants the military broad powers to define what is considered a threat or risk to the country’s security and when and how they can act upon it (see Article 6 of the Internal Security Law). There is nothing in the law to improve transparency on this matter.
This is also not the first time that Mexico’s Congress has approved laws that could permit the military to extend its jurisdiction beyond military cases. In fact, in June 2016 the CNDH challenged before the Supreme Court the constitutionality of some articles of the Military Code of Justice and the Military Code on Criminal Proceedings that were reformed in May 2016 as they grant the military the power to implement wiretaps and to conduct searches on private property or in public offices. The challenge is still pending resolution in the Supreme Court.
The Internal Security Law does not incorporate the principle of “strict” or “absolute” necessity when it comes to the military’s use of force. This principle requires that soldiers refrain from deploying force beyond what is strictly or absolutely necessary to protect life. Instead, the Internal Security Law instructs soldiers to use their “military training”—which traditionally has been the use of overwhelming lethal force to overwhelm the “enemy”—in responding to situations deemed to be interior security threats.
This is particularly troubling given that the law opens the path to classify protests or other forms of social dissidence as an “interior security threat” requiring military intervention. Essentially, this means a protestor exercising his or her right to freedom of expression could be considered the “enemy.”
The lack of an adequate legal framework for the Mexican military’s use of force has previously resulted in serious human rights abuses, in which soldiers were able to deploy excessive and lethal force against civilians with impunity. The Internal Security Law does nothing to change this situation.
Upon taking office, President Peña Nieto committed to proposing a law on the use of force, but this went nowhere. And while four official military protocols regarding the use of force have been issued since 2009, there is no public information available on how soldiers comply and enforce these protocols.
In fact, evidence indicates that the existing protocols on military use of force are frequently ignored in practice. Mexico has an alarmingly high number of civilian fatalities in confrontations with security forces. Furthermore, the extrajudicial killings of civilians at Tlatlaya and Palmarito occurred despite the existence of these protocols, which, according to representatives of the armed forces, are mere “administrative guiding principles.”
Information on the law’s enforcement is classified on the grounds that it is a matter of “national security” (article 9). This means it will be difficult for civilian groups to monitor the military, as well as law enforcement in general, once the law is fully implemented.
This lack of transparency will seriously affect the ability of public agencies, such as the CNDH and the Attorney General’s Office, to investigate military abuses against civilians. Mexico’s National Institute for Transparency, Access to Information and Protection of Personal Data (INAI) is challenging the law in court, arguing that it violates citizens’ right to access information and the protection of personal data.
The law cements Mexico’s reliance on its armed forces to handle all security tasks. This will only further weaken efforts to strengthen and professionalize the civilian police forces—the bodies that are supposed to be in charge of law enforcement and public security.
It is worth highlighting that Mexican presidents have justified the use of the military in a policing role for almost two decades by describing it as a temporary measure until Mexico’s civilian police forces were sufficiently professionalized. Although Peña Nieto echoed his predecessors on this matter, the Mexican military continues to play the primary role in combatting organized crime in the country, and the police still lag far behind.
A recent government assessment of the country’s police forces points to the government’s failure to prioritize civilian policing. According to the study, Mexico has less than half the number of recommended police agents for the country; only one in four agents have received sufficient training, and out of 39 police academies, only six are fully functional.
Mexico’s Supreme Court will continue to receive constitutional challenges to the law until February 6. A date has not yet been set for when 11 justices who sit on the Supreme Court will hear the case and rule on whether the law violates the Mexican Constitution.
This process will serve as an important test for Mexico’s checks and balances. The Supreme Court must exercise complete autonomy in making a decision, carefully reviewing the challenges to the law and considering the public’s concerns.
Although the law’s constitutionality is under question, it is also important to emphasize that the Internal Security Law will not make Mexico a safer, less violent country. Nor will it put an end to the crisis of impunity and corruption that prevails in the country, where 9 out of 10 crimes go unreported and at least 14 current or former governors are under investigation for corruption. On the contrary, the law will worsen the liberties and rights of Mexican civilians, further exposing them to military lethal force and abuses, particularly those living in areas with high presence of organized crime.
Ultimately, the Internal Security Law serves those politicians who have failed to pass reforms to strengthen civilian institutions or to commit to strengthening their police forces. In fact, when members of the Institutional Revolutionary Party (Partido Revolucionario Institucional, PRI) and their allies in Congress voted to move forward with the Internal Security Law, they also voted against another proposed bill regarding the command structure over the country’s police. Congress has also failed to approve a comprehensive constitutional reform to further protect the new Fiscalía General (that will replace the Attorney General’s Office) from political influence.
That the Mexican Congress should fail to move forward with initiatives to strengthen the police and protect the independence of the Fiscalía General, and that the Internal Security Law should pass despite widespread national and international outcry, strongly suggests that Mexico’s politicians may have learned very little from the security lessons of the past two decades.
See WOLA’s resource page on the Internal Security Law.
See WOLA´s report on human rights violations committed by Mexican soldiers against civilians.