WOLA: Advocacy for Human Rights in the Americas

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24 Sep 2019 | Commentary

Five Years On, Still No Justice for Mexico’s 43 Disappeared Ayotzinapa Students

Mexico Must Strengthen Efforts to Address its Disappearances Crisis

Five years after 43 students from Ayotzinapa, in Mexico’s southwest state of Guerrero, were attacked by Mexican security forces and forcibly disappeared on September 26, 2014, the Mexican government has yet to provide a conclusive account of what happened to the students. The whereabouts of the victims remain unknown and the government has failed to secure a single conviction for those responsible. 

In recent weeks, dozens of individuals accused of participating in the students’ disappearance—including main suspects—have been set free due to investigative irregularities committed by former officials in the case. Other suspects could soon be released for the same reason. 

This tragic case has become emblematic of the broader disappearance crisis plaguing Mexico. In addition to the 43 Ayotzinapa students, the vast majority of the more than 47,000 registered disappearance cases currently active in Mexico remain unresolved, leaving families across the country desperately searching for answers about the fate of their missing loved ones. According to government data, only 10 disappearance cases resulted in federal convictions between June 2001 and January 2018.

What’s more, former President Enrique Peña Nieto’s administration’s gross mishandling of the Ayotzinapa investigation—which included the arbitrary detention and torture of suspects, the failure to investigate critical lines of inquiry, efforts to tamper with evidence and obstruct justice, and the propagation of an official version of events that did not match up with independent expert analysis—heightened public support for much-needed reforms to justice institutions and a prompt resolution of the case. 

In December of 2018, newly elected President Andrés Manuel López Obrador pledged to right the wrongs of his predecessor and make resolving the Ayotzinapa case a priority for his administration. Below, we provide a brief history of the irregularities that marred the investigation under Peña Nieto’s rule, an analysis of progress and setbacks in the case since López Obrador took office, as well as challenges that remain in addressing Mexico’s broader disappearances crisis. 

Former President Peña Nieto’s Gross Mishandling of the Ayotzinapa Case

One of the gravest legacies of the Peña Nieto administration was its critical mishandling of the Ayotzinapa case. Under Peña Nieto, the Attorney General’s Office (Procuraduría General de la República, PGR) claimed that after their abduction, municipal police handed the students over to the organized criminal group Guerreros Unidos, who then killed the students and incinerated their bodies in a local trash dump, leaving behind few remains. 

But a group of five technical experts appointed by the Inter-American Commission on Human Rights (IACHR), which analyzed the case between 2015 and 2016, refuted the Mexican government’s “historic truth.” The group, known as the Interdisciplinary Group of Independent Experts (Grupo Interdisciplinario de Expertos Independientes, GIEI), hired fire analysts that found no evidence to suggest the students’ bodies were burned at the trash dump. Other experts that worked on the case, the Argentine Forensic Anthropology Team (Equipo Argentino de Antropología Forense, EAAF), also determined that the trash dump theory was scientifically impossible

The GIEI also found evidence suggesting that detainees who had corroborated the Mexican government’s version of events had been tortured by Mexican officials, and that the PGR had failed to pursue several critical lines of investigation in the case. This includes the possibility that the students had been attacked because they had inadvertently interfered with the operations of a transnational drug trafficking ring. It also includes the possibility that federal security forces, including the Army and Federal Police, may have been involved in the students’ disappearance. The GIEI’s work further found evidence that Mexican officials had purposefully impeded the investigation and obstructed justice

[Read WOLA’s analysis on the GIEI’s findings]

Building on the work of the GIEI, the UN Office of the High Commissioner for Human Rights (OHCHR) examined the case files of 63 individuals detained in relation to the Ayotzinapa investigation. The body found “strong grounds to believe” that public officials had arbitrarily detained and tortured dozens of detainees to coerce confessions that corroborated the government’s version of what happened to the students, and that authorities had gone to great lengths to cover up these abritrary detentions and torture.

President López Obrador’s Response and the Status of the Ayotzinapa Case Today

As a sign of his commitment to prioritizing the Ayotzinapa case, President López Obrador has held four meetings with the students’ families to discuss ways to bring progress in the case. The new president has also made broad commitments to address Mexico’s wider disappearances crisis, meeting regularly with other families of the disappeared across the country. 

López Obrador has promised that there will be “no financial ceiling” for strengthening the country’s newly-created National Search Commission—a body charged with leading nationwide searches for the disappeared, identifying the remains of individuals found in clandestine graves, and fully implementing the 2017 General Law on Disappearances, which aims to strengthen Mexico’s legal and institutional capacity to address disappearances.

In the first nine months of López Obrador’s administration, the government has made important headway in fulfilling these promises. His administration established a Presidential Commission for Truth and Justice to supervise the Ayotzinapa investigation, and has worked to implement a new, independent National Prosecutor’s Office with an investigative unit fully dedicated to the case. However, much is still left to be done, and the families of the disappeared have expressed frustration at the government’s slow pace in moving forward. 

The Presidential Commission for Truth and Justice 

The López Obrador administration has taken much-needed steps to strengthen support for the families of the 43 disappeared students and to ensure they have a direct role in monitoring and participating in the investigation. On the new president’s third day in office, he signed a presidential decree to create a Presidential Commission for Truth and Justice for the case. The decree calls for the students’ families and their legal representatives to form part of the Presidential Commission and to take a lead role in its decisions and activities. 

The Presidential Commission—headed by Alejandro Encinas, Undersecretary for Human Rights, Population, and Migration within the Ministry of the Interior—has secured critical international assistance and oversight for the investigation, signing cooperation agreements with both the OHCHR and the IACHR. As part of its agreement with the IACHR, the Presidential Commission invited members of the Interdisciplinary Group of Independent Experts (GIEI) to return to Mexico to continue providing technical assistance for the case. Two of the original members of the GIEI traveled to Mexico on August 1 to begin this work. 

Another aspect of the Presidential Commission’s mandate involves designing and implementing incentive agreements for individuals who agree to provide information on the case, including detainees who may have information on the whereabouts of the students or those involved in their disappearance. Such an incentive package could yield valuable insights in the investigation; however, the victims’ lawyers have reported to WOLA staff that government officials have yet to fully explore possibilities for implementing such a policy. 

Progress and Challenges with the New National Prosecutor’s Office

A new, autonomous National Prosecutor’s Office (Fiscalía General de la República, FGR) replaced the PGR in December 2018 (as a result of 2014 constitutional reforms), providing hope for a new chapter in the Ayotzinapa investigation. Unlike the PGR, the new office is independent from the Executive Branch and arguably more capable of carrying out credible investigations into grave human rights violations without political interference. 

In a positive development, on June 26, National Prosecutor Alejandro Gertz Manero created a Special Investigation and Litigation Unit for the Ayotzinapa Case, a new unit within the National Prosecutor’s Office focused solely on investigating the 43 students’ disappearance. The families of the students have widely welcomed the appointment of Omar Gómez Trejo as the head of the Special Unit, given his previous work as executive secretary of the GIEI and his involvement in the IACHR’s Special Follow-Up Mechanism to the Ayotzinapa Case.

On September 18, Gertz Manero and Gómez Trejo held a meeting with the students’ families and their legal representatives, in which President López Obrador was present as a witness for part of the time. In the meeting, Gómez Trejo said that the Special Unit will begin a new investigation into the case in order to restructure what the PGR had done, discarding elements that are unusable and recovering evidence that could serve to strengthen key lines of investigation.

However, obstacles remain. Due to the grave irregularities that characterized the original PGR investigation, dozens of individuals detained in relation to the case have been released from prison, with the charges against them dropped. For example, on August 30, a federal judge absolved one of the suspected intellectual authors in the case, after determining that Mexican authorities had obtained the majority of the evidence against him illegally, including through torture. The suspect, Gilardo López Astudillo “El Gil”—a leader of the Guerreros Unidos criminal group that is accused of playing a central role in the students’ disappearance—was subsequently released from prison. On September 14, the same judge ordered the immediate release of 24 municipal police officers linked to the case for similar reasons. With this most recent ruling, 77 of the 142 detainees tied to the case have been released. 

The National Prosecutor’s Office still has an important opportunity to correct the deficiencies in the charges brought against several of the suspects who remain in prison. In the September 18 meeting with the families, Gómez Trejo affirmed that his team is challenging some of the acquittals ordered by the courts, affirming that he will provide judges with evidence that justifies the suspects’ continued detention.

This work is essential. If this issue is not promptly addressed, other detainees may also be released, resulting in a devastating loss of valuable information that could be critical to resolving the case and uncovering the students’ whereabouts. In order to move the investigation forward, Gertz Manero should ensure that Gómez Trejo and the Special Unit have the resources and autonomy needed to fully conduct their work. 

Investigations into Irregularities and Obstruction of Justice 

The National Prosecutor’s Office is now complying with a December 2018 federal court ruling that ordered the then-PGR’s Inspector General’s Office to conduct an internal investigation into officials who tortured detainees or committed other irregularities. The ruling found that the PGR’s original internal investigation, which concluded in December 2016 and found only minor administrative irregularities, was not exhaustive and failed to recognize the severity of the offenses committed. 

The new Inspector General’s Office inquiry points to grave administrative offenses committed by several high-level public officials within the former PGR. This includes possible crimes against the administration of justice committed by Tomás Zerón, former director of the PGR’s now defunct Criminal Investigation Agency (Agencia de Investigación Criminal, AIC), who was heavily involved in the Ayotzinapa investigation before resigning from his post in October 2016 to assume another position in the Peña Nieto administration. The Inspector General’s Office has called for prosecutors to open a criminal investigation against Zerón for his possible involvement in tampering with evidence at the San Juan River in Cocula, Guerrero, where a bone fragment of one of the disappeared students was found in October 2014.

Mexico’s National Human Rights Commission (Comisión Nacional de los Derechos Humanos, CNDH) has also requested that the National Prosecutor’s Office criminally investigate public officials who may have obstructed the investigation. On July 22, the CNDH presented 18 criminal and administrative complaints against 375 current and former public officials, including Zerón, for crimes and other irregularities committed in the Ayotzinapa investigation.

Addressing Widespread Disappearances in Mexico

While a tragedy on its own, the Ayotzinapa case has come to symbolize Mexico’s broader disappearances crisis, and the failure of its criminal justice system to properly investigate these crimes, search for the disappeared, and sanction those responsible.

In recent years, Mexico has taken some important steps to address this crisis. Following extensive advocacy efforts by family members of the disappeared and human rights organizations, in 2017 Mexico passed the General Law on Disappearances, a landmark law that standardized protocols for investigating disappearances and called for the creation of a National Search Commission (Comisión Nacional de Búsqueda, CNB) tasked with leading searches for missing persons. The National Search Commission restarted its work in March, following the appointment of Karla Quintana as the Commission’s head. 

In its report on the first 100 days of its work, the Commission highlighted several accomplishments, including the accompaniment of family members in local searches for the disappeared, the design of a Standardized Search Protocol, and an assessment of the government’s forensic capacity to identify remains. The Commission is also working to develop regional search plans (starting with a plan for northern Mexico) as well as a centralized National Registry of Disappeared Persons.

While this progress in implementing the General Law on Disappearances at the national level is promising, several states have fallen behind in ensuring they are in compliance with the law. The legislation requires each of Mexico’s 32 states to establish their own search commissions at the local level, but as of June 30, eight states have yet to do so. And while the Mexican government authorized over USD$11.5 million to support the local search commissions, less than half of those funds had been spent by August 2019. 

Apart from establishing effective ways to search for the disappeared, Mexico faces significant challenges in the forensic identification and registry of discovered remains. There are over 26,000 unidentified remains being held in government facilities across the country, on top of countless numbers of bone fragments. The Mexican government announced in late August that since December 2006, the government had discovered 4,974 bodies in 3,024 clandestine graves across the country.

Given the magnitude of this situation, the López Obrador administration has recognized a “national emergency” in the forensic exhumation of remains that requires international assistance. In an IACHR hearing held on May 9, 2019, the Movement of the Families of the Disappeared and organizations that accompany these families called for the creation of an Extraordinary Mechanism for Forensic Identification in order to identify the remains of unidentified persons that are in government facilities.

Families of the disappeared also continue to call on the Mexican government to develop missing persons search plans that focus on finding victims alive, rather than solely focusing efforts on the search and identification of remains. Families have also called attention to the lack of adequate protocols for coordination between the National Search Commission, local search commissions, and prosecutor’s offices, which has contributed to the inefficiency of searches and investigations. 

In terms of investigations, the Special Prosecutor’s Office for Human Rights, a subunit within the new National Prosecutor’s Office has the power to investigate disappearance cases and the ability to assume jurisdiction over state-level cases. The formation of this special office has been a focal point of advocacy efforts, with families of the disappeared calling for the first human rights prosecutor to be appointed through a public and transparent process allowing for the participation of victims and civil society organizations. 

While such an appointment process is required by law, National Prosecutor Gertz did not carry out any public process to elect this prosecutor, and on August 7, he selected Sara Irene Herrerías Guerra to lead human rights investigations. Previously, Herrerías served as the head of the former PGR’s Unit on Human Rights, Crime Prevention, and Community Services. 

Next Steps

As the one-year anniversary of López Obrador’s presidency approaches, expectations are high that his government will do what his predecessors have not: provide answers to the tens of thousands of families of the disappeared in Mexico. 

The case of the 43 students from Ayotzinapa helped visibilize the tragedy of disappearances in Mexico. The López Obrador administration should urgently work to discover their whereabouts, sanction those responsible for their disappearance, and hold accountable those who obstructed justice in the investigation. But the government must also go beyond this one emblematic case. All families of the disappeared in Mexico deserve clear answers from the government about what happened to their loved ones and a firm commitment to truth and justice in their cases.