WOLA: Advocacy for Human Rights in the Americas
24 Sep 2013 | Commentary

Why Mexico should Reform its Military Code of Justice

By Maureen Meyer and Clay Boggs

This week, the Mexican Senate will hold a series of public debates about reforming the country’s Military Code of Justice. The purpose of the reform is to ensure that human rights violations committed by members of the military against civilians are investigated and prosecuted in civilian courts instead of military courts. However, it remains to be seen what modifications might be made to the legislation before it comes up for a vote. If a comprehensive reform is passed, it will be a victory for human rights in Mexico, as it will provide greater access to justice for victims and their families.

In the last seven years, the Mexican government has deployed over 50,000 members of the armed forces to combat drug traffickers and other criminal groups. This massive deployment has led to a dramatic increase in human rights violations. In 2007, Mexico’s National Human Rights Commission (Comisión Nacional de Derechos Humanos, CNDH) received 367 complaints of human rights violations committed by members of the army (Secretaría de la Defensa Nacional, SEDENA) and 31 against the navy (Secretaría de la Marina, SEMAR). These numbers increased significantly in the following years, reaching a peak of 2,190 complaints in 2011. Documented cases involve serious abuses including torture, rape, unlawful killing, arbitrary detention, and enforced disappearance. Since 2007, the CNDH has received more than 10,000 complaints of human rights violations committed by members of the military.

This year’s numbers for complaints are far higher than they were in 2006, and although they have fallen slightly since 2012, they still include an alarming number of serious human rights violations. In the first eight months of 2013, the CNDH received 590 complaints against Mexico’s army and 285 complaints against the navy, including 20 complaints of unlawful killings; 427 complaints of cruel, inhumane, or degrading treatment; and four complaints of enforced disappearance.

Mexico has traditionally prosecuted such human rights violations in military courts. But military courts suffer from a fundamental conflict of interest, because the military acts as both defendant and judge. Furthermore, the military justice system in Mexico does not have mechanisms such as judicial tenure to make sure that judges are independent. A lack of transparency compounds these problems: investigations and proceedings take place behind closed doors, and it is very difficult for anyone not directly related to a given case to access any information about its status. The use of military jurisdiction makes obtaining justice in cases of human rights violations committed by members of the armed forces nearly impossible. Very few of the cases have resulted in convictions: out of nearly 5,000 cases opened by the Military Attorney General’s Office between 2007 and 2012, only four cases resulted in convictions.

There has been considerable international pressure to ensure that human rights violations committed by Mexican soldiers are investigated and prosecuted in civilian jurisdiction. International human rights groups, including the Washington Office on Latin America (WOLA), have consistently highlighted this issue. The United States government has also made its position clear: since the onset of U.S. security assistance to Mexico through the Merida Initiative in 2008, Congress has included human rights requirements that withhold 15 percent of select funds from Mexico until the State Department determines that the requirements have been met. One of these requirements is the investigation and prosecution in civilian courts of soldiers allegedly responsible for human rights violations. And in the past several years, the Inter-American Human Rights Court has issued four legally binding rulings requiring Mexico to reform Article 57 of the Military Code of Justice, which regulates the use of military jurisdiction and which the military has historically interpreted to give itself jurisdiction over cases involving human rights violations committed by its members.

In recent years, important steps have been taken within Mexico to limit the use of military jurisdiction. In July 2011, the Mexican Supreme Court issued a historic ruling in the case of the 1974 disappearance of human rights activist Rosendo Radilla, which established that members of the military must be tried in civilian courts. In August 2012, the Supreme Court (Suprema Corte de Justicia de la Nación, SCJN) reinforced that decision when it declared Article 57 unconstitutional and called for it to be reformed. These two landmark rulings established that investigations and prosecutions of human rights violations committed by members of the military had to be handled by civilian courts instead of military courts. However, these and other important decisions on military jurisdiction made by the Supreme Court in 2012 do not set binding legal precedent in the Mexican legal system. To do so, the Supreme Court would need to either rule the same way on five consecutive specific cases, or to re-interpret a law that had been interpreted differently by lower-level tribunals.

Mexico’s Military Attorney General’s Office and military courts have begun to transfer some cases to civilian courts. According to the Mexican government’s 2013 report to the United Nations Human Rights Council for its Universal Periodic Review, between mid-2012 and July 2013, 231 preliminary investigations and 180 criminal cases have been transferred to civilian courts. However, there is little information about the type of cases that have been transferred or about the criteria that the military is using to decide which cases can be sent to civilian jurisdiction. The Military Code of Justice needs to be reformed in order to guarantee that all cases of human rights violations committed by members of the military are investigated and prosecuted in civilian courts.

Passing a reform to the Military Code of Justice that would definitively end the use of military jurisdiction for human rights abuses committed against civilians by members of the armed forces would be a clear step in the right direction for human rights in Mexico, and it would send a strong message to the members of Mexico’s armed forces that they are not immune to prosecution. It would also bring Mexico into compliance with rulings of the Inter-American Court of Human Rights and important decisions by Mexico’s Supreme Court. WOLA lauds the Mexican Senate for renewing discussion about the Military Code of Justice and hopes that the Senate will promptly approve a reform that complies with the legal rulings issued on this matter.