WOLA: Advocacy for Human Rights in the Americas

Gabriel Guerrero

4 Oct 2022 | Commentary

Interference from Above Closes Doors to Justice in Ayotzinapa Case

Stephanie Brewer

In August 2022, both Mexico’s federal government and its National Prosecutor’s Office (Fiscalía General de la República, FGR) presented high-profile actions in the Ayotzinapa case. This included the detention and opening of a criminal trial against Mexico’s former Attorney General, Jesús Murillo Karam, and the issuance of 83 additional arrest warrants against military agents, civilian officials, and private individuals in relation to the case. These steps were initially seen as convincing advances toward justice and proof of the authorities’ willingness to clear up the facts.

However, a series of revelations and events that have taken place over the past month paint a very different picture, leaving the criminal investigation at risk and even leading to the resignation of the case’s Special Prosecutor, Omar Gómez Trejo. This resignation comes amid further evidence of military and civilian authorities’ collusion with organized criminal actors at the time of the enforced disappearance of the 43 Ayotzinapa students, as the Interdisciplinary Group of Independent Experts (Grupo Interdisciplinario de Expertos y Expertas Independientes, GIEI) highlights in a new report published on September 29.

Below, we summarize the events surrounding the Special Prosecutor’s resignation and the findings of the GIEI’s new report.

1.  Interference from above displaces and undermines the independent work of the Special Investigation and Litigation Unit for the Ayotzinapa Case (Unidad Especial de Investigación y Litigación del Caso Ayotzinapa, UEILCA).

The UEILCA, created in June 2019, is the FGR office charged with investigating the Ayotzinapa case. The agreement that created the UEILCA gives it full control and authority over all aspects of the investigation, prosecutions, criminal trials, and judicial remedies connected to the case. Over the past three years, the UEILCA has achieved advances in both clarifying the circumstances of the disappearances and revealing the scale of authorities’ manipulation of the initial investigation of the case, leading to arrest warrants and trials against various relevant officials.

However, in mid-Augustjust prior to president Andrés Manuel López Obrador’s meeting with the students’ families and the publication of the report of the presidency of the Commission for Truth and Access to Justice in the Ayotzinapa case (Comisión para la Verdad y Acceso a la Justicia del caso Ayotzinapa, COVAJ) on August 18FGR agents external to the UEILCA began to interfere significantly with the Special Unit’s work at the behest of National Prosecutor Alejandro Gertz Manero. In particular, the National Prosecutor asked Gómez Trejo to file charges against former Attorney General Murillo Karam, but Gómez Trejo indicated that he needed more time to finish constructing a solid case. As of August 16, according to information published by the GIEI, the FGR assigned an external prosecutor (from the Internal Affairs Unit) to the UEILCA, who proceeded to take control of the corresponding investigation and request the arrest warrant against Murillo Karam, going against the UEILCA’s own opinion. The result was a prosecution so hurried that the judge who conducted the initial hearings reprimanded the FGR personnel who presented the accusations for their lack of knowledge of the case (Gómez Trejo was in Israel at the time following up on Mexico’s extradition request for Tómas Zerón). These circumstances cast doubt on the future of the trial against the highest-level authority accused in the case.

Additionally, although the FGR had publicly announced on August 19 that it had obtained 83 additional arrest warrants, it requested the cancellation of 21 of those warrants just weeks later, without citing any clear grounds for doing so. As a result, a judge annulled the 21 orders, of which 16 were against soldiers, including Colonel Rafael Hernández Nieto, then-commander of the 41st Infantry Battalion in Iguala, the municipality where the students were forcibly disappeared. In its new report, the GIEI notes that the original request for the 83 arrest warrants was rushed “to meet the National Prosecutor’s timeline” and without duly taking into account “the processing of evidence” still underway in the Special Unit. Even so, the evidence presented “convin[ced] a judge to issue the 83 arrest warrants,” and there is no apparent explanation for why some of those warrants were subsequently canceled while other similar ones were not.

In this same context, the FGR left the UEILCA without ministerial police, failing to respect the legal framework that created the UEILCA. In other words, the UEILCA no longer has the 13 police agents who carried out its field investigations and other needed tasks. Additionally, the FGR has started an audit of the UEILCA, which, to the GIEI, suggests a risk that the FGR seeks to retaliate against the members of the Special Unit.

As reported by the GIEI at a press conference on September 29, the UEILCA has now been essentially taken over by FGR agents from outside the Special Unit, including personnel not only from Internal Affairs but also from the former organized crime investigation office (Subprocuraduría Especializada en Delincuencia Organizada, SEIDO)—areas of the FGR implicated in manipulating the initial phase of the investigation during the past administration.

Lacking the minimum institutional guarantees necessary to carry out an independent investigation, Gómez Trejo resigned, a decision made public on September 27. Mexican and international collectives and organizations have denounced the interference of the National Prosecutor and other parts of the FGR in the Ayotzinapa investigation and called on Mexican authorities to guarantee the safety of Gómez Trejo, his team, and their families, due to the risk that they could face retaliation for their work over the past three years.

The outside interference in the UEILCA and the other events narrated here strongly suggest that, despite López Obrador’s promises to prioritize access to justice in the case, the necessary conditions for an independent investigation are disappearing, along with the chance to achieve, as far as possible, full knowledge of the facts and accountability for those responsible. In the words of the GIEI, the events of recent weeks “show a worrying path that will lead to greater impunity in the case.”

  1. The GIEI’s new report: growing accusations against the armed forces.

On September 29, the GIEI presented its fourth report on the case. In the document, the GIEI expresses its concern over the sidelining of the UEILCA from the investigation, chronicling the events outlined above. Additionally, it presents observations and new information stemming from its own technical assistance in the investigation, highlighting the following:

  • Recalling that the military authorities, among others, were informed in real time of the events that took place the night of the enforced disappearance—without this information being used to search for the students or duly added to the investigation—the GIEI stresses that, to date, the Ministry of Defense (Secretaría de la Defensa Nacional, SEDENA) has still not handed over all the wiretaps it has and even denies the existence of evidence in its possession, just as it has denied the very existence of a military intelligence center that collected relevant information. The GIEI points out:

Information obtained by the GIEI permitted the identification of an Intelligence Center where telephone monitoring and interception activities were carried out; despite the fact that SEDENA confirmed to the GIEI that said center did not exist, the CRFI Regional Intelligence Command of the Northern Area Iguala existed as of September 2014 (housed in the 27th Infantry Battalion) and carried out monitoring, interception, and searching of calls, since there is a record of all of this. The GIEI directly verified various messages from this center in the information that it possesses, where there were several transcripts and messages that contained information of this nature, but it has also carried out investigations that allow it to conclude that interceptions were made through means such as PEGASUS spyware.

SEDENA’s response to the GIEI’s repeated requests has been the denial of the existence of the CRFI messages, alleging that they have not been found or that they do not exist, which is not the truth.

  • Messages intercepted as part of a U.S. investigation into the Guerreros Unidos criminal group (implicated in the students’ disappearance) and shared with Mexican authorities by the U.S. Department of Justice (DOJ), contain evidence that members of the criminal group had links with members of the Mexican army, navy, and security forces and other local authorities in Guerrero. Various messages point to collusion between Guerreros Unidos and soldiers: “In at least twelve messages in the intercepted communications, a specific mention is made of the military. For example, it is mentioned that they do ‘jobs’ together… […] There are also at least four messages that refer to meals provided to the military or that members of Guerreros Unidos and members of the army are eating together.”

Among the soldiers named in the messages is a Colonel Nieto, presumably Rafael Hernández Nieto, against whom an arrest warrant was requested and later canceled by the FGR. The intercepted messages also reference the navy, the local forensic service, the state police, three municipal police corporations, and three municipal presidents. Through its relationship with these authorities, Guerreros Unidos is alleged to have had access to the information collected by the “C4” center, the inter-institutional monitoring and intelligence center in Iguala coordinated by security institutions of different levels. All of the above highlights the level of institutional corruption, both civil and military, that is believed to have permitted the criminal group’s operations in Iguala.

  • The GIEI emphasizes the need for expert verification of the screenshots of telephone messages published in the COVAJ’s report on August 18. This refers to a series of chats that apparently narrate different facts of the disappearance, but that present differences in wording and terminology compared to other messages already included in the investigation. Among other observations, the GIEI points out that “various people whose names appear in the messages, and who as a result should have the messages in their telephones, were detained for nearly two years, and their phones had allegedly been searched. [An] exhaustive search is fundamental at the present moment to contrast the proposed evidence in these new telephones and devices.” Unfortunately, the unredacted version of the chat screenshots was leaked to the press in recent days, leading to the public dissemination of a version whose authenticity has not been corroborated, which provokes harm and pain for the students’ families. The GIEI is working on the independent verification of this evidence, to which it did not have access prior to the COVAJ’s report.

Recommendations and conclusions

The GIEI’s mandate ended on September 30. The group, which has asked for a one-month extension, is thus expected to leave its formal role of technical assistance in the case in the near future. This is currently the only case in Mexico where this type of international assistance for an investigation into grave human rights violations exists. Meanwhile, the FGR’s recent actions against the work of the UEILCA call the future of the investigation and the ongoing criminal trials into question.

The families of the students are the ones who directly suffer the consequences of the Mexican authorities’ actions over recent weeks. As the GIEI explains:

The families and the victims have been waiting many years for this process to advance. The practice of torture and the absence of objective proof during the first years of the investigation, as well as the insistence on the “Historic Truth,” brought a total loss of trust in the institutions. The creation of the UEILCA and the COVAJ were the first steps toward rebuilding it. The presence of the GIEI gave the families the certainty that this process would advance even with all of the difficulties. The charges presented by the UEILCA against 83 alleged perpetrators were the long-awaited confirmation that relevant steps were being taken to obtain justice.

The lack of criteria and experience with which several hearings for arrest warrants have been carried out makes the families feel as though this weakness will lead to future impunity.

In this context, the GIEI makes the following recommendations, which it considers essential:

  • A follow-up mechanism for the case. Faced with the end of its mandate, the GIEI highlights “the need to have a mechanism that generates trust and support for the process among the families. A periodic evaluation and monitoring mechanism, in the field of investigation and accompaniment of family members.”
  • Strengthening of the UEILCA to reverse the process of deterioration, questioning, and lack of institutional support within the National Prosecutor’s Office.
  • New agreement on the role of the COVAJ and rules regarding relatives and representatives. “The COVAJ needs to strengthen its relationship with family members to follow up on this phase of the case. The political, legal-judicial, and psychosocial dimensions must be taken together and we encourage the COVAJ to take these aspects into consideration and determine how to approach them in the future.”

In conclusion, access to truth and justice for Ayotzinapa is once again in doubt, with few hopeful signals from institutions in recent weeks. In this context, it will be more important than ever for the national and international community to maintain its attention on the case, which, as the GIEI points out, has had an unprecedented level of visibility, political commitment, international assistance, and resources, and therefore represents a historic chance not only to do justice for Ayotzinapa, but also to establish models and consolidate necessary practices to resolve many more cases in a country with more than 100,000 disappeared and missing people. As the GIEI concludes:

[T]he mechanisms of impunity that have blocked truth and justice in [the Ayotzinapa case] are linked to structural investigation and justice problems in the country. Solving the case in an adequate manner will be a contribution to the change that Mexico needs. If this does not happen, the families and a good part of the country will lose that hope.