Promotion and protection of all human rights, civil,
political, economic, social and cultural rights,
including the right to development
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns
Mission to Mexico*
The Special Rapporteur on extrajudicial, summary or arbitrary executions conducted an official visit to Mexico from 22 April to 2 May 2013. In this report, the Special Rapporteur presents his main findings and puts forwards recommendations to ensure enhanced protection of the right to life in Mexico.
The Government of Mexico has undertaken a number of positive initiatives to improve human rights protection of vulnerable persons, and significant constitutional reforms, among other institutional and policy improvements. Nevertheless, violations of the right to life directed against vulnerable groups continue to take place at an alarmingly high rate. Impunity remains a serious concern at the individual and systemic levels.
Problems in the protection of the right to life in Mexico are due to various factors including deficiencies in the legal system; increased organized crime activity and drug trafficking; unwillingness or lack of capacity of police and prosecutors to investigate; distrust in the judicial system by citizenry; and lack of accountability for violations. Accordingly, the Special Rapporteur draws particular attention in this report to the issue of ending impunity. To this end, there is an urgent need to decrease the involvement of the military in policing; ensure that civilian and not military courts try members of the military who are accused of having committed human rights violations; and establish clear and widely-known standards on the use of force by law enforcement officials at all levels of government.
The Special Rapporteur recalls in this report that is important to look forward and to prevent future violations of the right to life. However, he stresses that it is equally important to ensure accountability for the violations of the right to life that have taken place in the past.
The gravity of the current situation must be faced squarely: the right to life is under serious threat in Mexico and addressing it should be a top national priority. A heavy-handed military approach is unlikely to improve the situation. What is called for is systematic, holistic and comprehensive strengthening of the rule of law, a critical element of which is ensuring accountability for abuses. The Special Rapporteur concludes this report by offering detailed recommendations.
[English and Spanish only]
Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, on his mission to Mexico (22 April to 2 May 2013)
I. Introduction 1–6 4
II. General observations 7–15 4
III. The legal and policy framework for securing the right to life 16–69 6
A. The Constitutional and international law bases 17–19 7
B. Problems of continued militarization 20–29 7
C. Further legislative needs 30–34 9
D. Opportunity for police improvements 35–39 10
E. The need to ensure a more robust legal and law enforcement system 40–59 10
F. Human rights institutions 60–63 13
G. The legacy of the “Dirty War” 64–69 14
IV. Vulnerable persons 70–88 15
A. Women 71–73 15
B. Migrants 74 16
C. Journalists and human rights defenders 75–78 16
D. Children 79–81 17
E. Inmates and detainees 82–84 17
F. Lesbian, gay, bisexual and transgender individuals 85–88 18
V. Conclusions 89–92 19
VI. Recommendations 93–122 19
A. Legal and policy framework. 93–110 19
B. Vulnerable persons 111–119 21
C. General 120–122 22
At the invitation of the Government of Mexico, the Special Rapporteur on extrajudicial, summary or arbitrary executions, Christof Heyns, conducted an official visit to the country from 22 April to 2 May 2013. The objective of the visit was to examine the current level of protection of the right to life in law and in practice in Mexico.
The Special Rapporteur wishes to thank the Government of Mexico for its invitation to visit the country and for the extensive cooperation provided during the preparation and conduct of this visit. The Special Rapporteur was impressed by the openness and willingness to engage with his mandate. He is also grateful to the staff of the Office of the United Nations High Commissioner for Human Rights in Mexico for providing assistance throughout and after his visit.
The Special Rapporteur visited Mexico City, and the states of Chihuahua, Guerrero and Nuevo León. The visit provided an opportunity to engage with the relevant authorities from the executive, legislative, and judicial branches at the federal and state levels and with national and local human rights institutions and civil society organizations, including affected individuals from the states of Tamaulipas and Coahuila. During his visit, he had the opportunity to meet with more than 120 officials of the federal and state governments.
At the federal level, the Special Rapporteur met with high-level authorities from the Ministry of Foreign Affairs, the Ministry of the Interior, the Ministry of Defence, the Ministry of the Navy, the Supreme Court of Justice, the Office of the Attorney-General of the Republic, the Senate, the Chamber of Deputies and the National Human Rights Commission. In Mexico City, he also held meetings with the Attorney-General of the Federal District, the Human Rights Commission of the Federal District and the Institute for Forensic Sciences, which is attached to the Superior Tribunal of Justice of the Federal District. In Chihuahua, he met with the Governor and the Minister of the Interior, prosecutorial authorities of the state Chief Prosecutor, state forensic services, law enforcement officials, the state Human Rights Commission, and the delegation of the Office of the Attorney-General of the Republic and the Justice Centre for Women in Ciudad Juárez.
In Guerrero, he held meetings with the Minister of the Interior, the Attorney-General’s Office, the Chief Justice of the High Court of Justice and other state authorities, the delegation of the Office of the Attorney-General of the Republic, the state Human Rights Commission and the Truth Commission of the state of Guerrero. In Nuevo León, he met with the Governor and other state authorities, the office of the state Attorney-General, the delegation of the Office of the Attorney-General of the Republic and the state Commission for Human Rights. In each of these states and in the Federal District, he also met with representatives of international and local civil society and victims. In addition, he consulted with relevant members of the United Nations Country Team.
This report was completed on 14 April 2014. It focuses on the situation at the time of the visit, although some reference is made to subsequent developments. As has been the practice of former special rapporteurs on extrajudicial, summary or arbitrary executions, in order to facilitate follow-up with the State with respect to the recommendations, a subsequent report will be prepared in two years.
II. General observations
The last visit by the Special Rapporteur on extrajudicial, summary or arbitrary executions to Mexico took place in 1999. In her report, the Special Rapporteur at that time highlighted a number of positive developments and challenges related to the right to life in Mexico, but warned against the militarization of internal security (E/CN.4/2000/3/Add.3). Subsequent to her visit, the situation deteriorated significantly with regard to the right to life, and impunity endures as one of the principal challenges for the country.
Interlocutors with whom the current Special Rapporteur engaged during his visit recounted how, since around 2007, the military had been deployed to take on the increasingly powerful drug cartels in what it called a “war on drugs.” In the course of this deployment, widespread extrajudicial executions were perpetrated by the security forces as well as the cartels, often without accountability. The Special Rapporteur is concerned that Mexico continues to experience alarming levels of violence. Extremely violent incidents, particularly violations of the right to life, continue to take place at an intolerable level.
Mexico faces significant challenges to protecting the right to life. There are considerable flows of drugs and vulnerable migrants throughout the country from south to north, while guns flow in from the northern border with the United States of America. Powerful and violent cartels, some of them reaching far beyond the borders of Mexico, have become entrenched and have, according to information received, infiltrated sectors of the Government. In addition, a number of vulnerable groups are particularly targeted by, or are so-called casualties of, this and other sources of violence.
The Special Rapporteur was informed that some states in Mexico have experienced unprecedented violence during the last six years or more.1Cities in states such as Chihuahua and Guerrero have at various stages been classified as some of the most dangerous in the world.
According to information provided to the Special Rapporteur by the Mexican authorities, 102,696 intentional homicides were committed during the previous federal administration, from December 2006 to November 2012. The Government acknowledges that as many as 70,000 of these were drug-related killings (almost 70 per cent). This is coupled with, and indeed made possible by, systematic and endemic impunity. According to the National Human Rights Commission, only around 1 to 2 per cent of crimes, including homicides, currently lead to conviction.2
The gravity of the situation should be confronted squarely, and most of the officials the Special Rapporteur met were open about this. Therefore, the Special Rapporteur welcomes information indicating that some positive legal and policy reforms have been introduced recently and that others are being developed and instituted now. There has also been an important shift in the message conveyed by the public authorities. The Special Rapporteur takes note that the security and justice section of the Pact for Mexico (an agreement signed by the President, Enrique Peña Nieto, and the main political parties in the country) highlights the objective of “recovering peace and liberty, by decreasing the levels of violence; specifically, efforts by the Mexican State will be focused on combating the three crimes that most harm people: homicide, kidnapping and extortion”3. What is still needed, however, are strategies on how these goals are to be implemented.
In his inaugural address in December 2012, Mr. Peña Nieto, declared: “This will be a Government that serves the rights of every Mexican. The first and last right is the right to human life.” This statement is commended by the Special Rapporteur inasmuch as it suggests that the federal Government of Mr. Peña Nieto will measure the effectiveness of its strategy to combat crime, at least in part, by the reduction in the number of homicides in Mexico. However, it is important that these efforts be undertaken with full commitment to and in compliance with international human rights standards. A decreased emphasis by public authorities on the subject of violence and crime may not reflect actual decreases in commissions of violent crimes in fact. During the course of his visit, the Special Rapporteur received extensive information indicating that killings and impunity for homicide continue to be widespread in many parts of the country. The present report therefore calls upon the Government of Mexico, at the federal and state levels, to ensure that the right to life is protected in terms of individual incidents, as well as in public statements and legal and policy reforms. The report emphasizes that a central component of protecting the right to life is ensuring accountability in all cases where it has been violated.
In this regard, the Special Rapporteur emphasizes that while it is clear that one aspect of any possible solution will lie in a forward-looking approach – for example, removing the social root causes of violence and preventing killings from taking place – and that some structural reforms are needed, it is also of central importance to keep looking back and to deal with crimes that have been committed. Thus, the Special Rapporteur encourages the Government to build a robust and effective system that investigates and where appropriate delivers punishment regarding each and every killing that occurs as the key to eventually breaking the cycle of violence.
Before the start of his visit, the Special Rapporteur addressed the Government of Mexico regarding 31 specific cases in which the right to life appears to have been violated. The 31 cases cover the period from 2007 to 2012. The main violations alleged include, sometimes in combination: death threats; deaths in custody; killings by members of the army, navy, and police; excessive use of force by law enforcement personnel; killings during protests; killings by presumed members of illegal armed groups; and enforced disappearances, torture, and arbitrary detention resulting in death. The Special Rapporteur wishes to thank the Government of Mexico for having provided information concerning 26 of the 31 cases, including information on the factual circumstances of the alleged violation and official response, status of the investigations and, where applicable, prosecutions and any instances where the cases have been resolved. However, the Special Rapporteur remains deeply concerned that a great number of these cases of killings appear not to have resulted in charges and/or not to have been investigated promptly or thoroughly, thus resulting in apparent impunity. He reiterates the importance of due diligence and urges the Government to ensure that the perpetrators of these killings are brought to justice and the rights of victims’ families honoured, including through the payment of compensation. Moreover, the Special Rapporteur strongly encourages the Government to provide a substantive reply to the five remaining cases.
III. The legal and policy framework for securing the right to life
Over recent years, Mexico has instituted important legal and policy changes, or is currently in the process of articulating such reforms. The right to life cannot be properly secured without a strong national institutional framework; strengthening in this regard is to be commended. However, in practice, a number of these systems remain problematic, because of incomplete implementation, flaws in their design, corrupt or improper functioning, or other practical shortcomings. The Special Rapporteur takes note of the commitment shown by Mexico to setting the legal and policy groundwork but stresses that more must be done in this regard, at the structural and the implementation levels, to prevent the unlawful loss of life and ensure the end of impunity throughout the country.
A. The Constitutional and international law bases
The Special Rapporteur takes note of significant positive constitutional reforms that have occurred over the last five years. Reforms in 2008 initiated the process to transform the country’s semi-inquisitorial system into an oral, adversarial system of criminal justice. This entails the introduction of the presumption of innocence (previously recognized by the Supreme Court) and the provision that any statement that is not made in the presence of a judge is invalid as evidence, as a way of countering forced confessions. Interlocutors reported, however, that implementation is slow. In some states that have implemented the new system, such as Chihuahua, disturbing counter-reforms have been introduced that undermine the critical principles of the reforms.
The Special Rapporteur commends Mexico for the 2011 reforms establishing that, once ratified, international human rights treaties have equal status to the Constitution. However, he is concerned that, as this report was being prepared, the Supreme CourtGreat.al:t children from being recruited by organized crime” and would need to be investigated and prosecuted...uding the massac established in plenary discussions that where the Constitution restricts human rights, that restriction applies, notwithstanding international treaty obligations. This risks undermining the application of the pro homine principle, requiring legal provisions to be interpreted in favour of individuals when there is uncertainty. At the time of writing this report, the final decision had not yet been published.
During the course of this visit, it was well demonstrated that Mexico is deeply engaged with the international and regional human rights systems and that it is a country open to international human rights scrutiny. The Special Rapporteur underlines that such openness and commitment of the State to the international human rights agenda strengthens its capacity to protect the right to life in partnership with the international community. A number of improvements to its domestic system would more fully ensure realization of these commendable commitments.
B. Problems of continued militarization
Moving away from the military paradigm in law enforcement
According to information provided to the Special Rapporteur, Mr. Peña Nieto has stated that the armed forces will continue carrying out public security tasks until the new strategy on security and justice is applied, which will allow for their gradual return to the barracks. The Special Rapporteur welcomes this commitment, although few details were available on its implementation at the time of writing.
The Special Rapporteur further notes that, in any country, soldiers involved in policing are notoriously unable to relinquish the military paradigm. Their training often leaves them unsuited for law enforcement. The primary objective of the military is to subdue the enemy through the use of superior force, while the human rights approach, in terms of which all law enforcement operations must be judged, focuses on prevention, arrest, investigation and trial, with force only as the last resort, and lethal force being permissible only to prevent the taking of life. The Special Rapporteur warns that following a military approach to public security risks creating a situation where a civilian population is vulnerable to a wide range of abuses. Moreover, there is insufficient accountability for these abuses in the military justice system, which lacks independence and transparency and has systematically failed to effectively prosecute soldiers alleged to have committed serious abuses. This reality is particularly critical in Mexico and should be addressed immediately.
The Special Rapporteur was informed that, from 2006 to April 2013, of the 52 recommendations made by the National Human Rights Commission (CNDH) relating to violations of the right to life, 39 were made to the Ministry of Defence and the Ministry of the Navy. Therefore, three out of four CNDH recommendations involving the right to life were directed at the armed forces. He considers this to be a highly revealing figure that underscores the risk of assigning public security tasks to the military.
Interlocutors at various levels of Government described how, within the strategies to reduce violence, the Pact for Mexico proposes the creation of a national gendarmerie. However, in the Special Rapporteur’s estimation, many questions remain about this new governmental security force and the level of support it enjoys. The reasons for its creation were not clarified and its characteristics remain undefined, along with the nature of its relationship with other security institutions.
The Special Rapporteur received information that the national gendarmerie was expected to have 40,000 officers who are militarily trained but under civilian control, although information subsequently obtained suggests that the numbers could be significantly lower. He reiterates that, if the gendarmerie’s establishment moves forward, all efforts should be made from the outset to ensure that, as a law enforcement body, it functions within a human rights framework, including through sufficient and specialized training on the use of force in law enforcement contexts, rather than a focus on military principles. In line with this, the Special Rapporteur stresses that officers who commit wrongful acts should be held accountable under the civilian justice system.
An important component of overcoming the military paradigm is to focus on strengthening the capacity of civilian authorities – including judges, prosecutors, investigative police, and other justice officials – to prevent, investigate and prosecute crimes. Information received stipulates that the budget of the army and the navy has increased significantly since late 2006. Mexico should consider making the necessary budgetary allocations to strengthen the capabilities of the civil authorities responsible for ensuring order and justice.
Likewise, the number of civilian police should be increased. According to information received, only half of the states have a police presence above the minimum recommended by the United Nations. Coahuila and Tamaulipas, where some of the highest levels of insecurity prevail, have the lowest rate of police presence in the country. The quantity and quality of police personnel should be improved significantly and other measures taken to reconstruct the social fabric in a country gravely affected by social disparity.
Ending military jurisdiction in cases involving crimes against civilians and human rights violations
The use of military courts to try military personnel for homicides involving civilians in Mexico is an issue of serious concern. It has been condemned by the Inter-American Court of Human Rights and the Supreme Court of Justice alike. This concern was clearly recognized by the authorities during the course of the Special Rapporteur’s visit. He received assurances from the Office of the Attorney-General of the Republic, the navy and the army that this practice is on its way out and, according to the relevant authorities, that all such cases are now transferred to the civilian system for investigation and trial. This would mean that more than 5,000 investigations into human rights violations allegedly committed by military personnel against civilians have to be transferred from the military justice system to the civilian justice system. However, the Special Rapporteur notes that no empirical evidence on the transfer of these cases had been made public at the time of writing this report and he stresses the importance of publishing that information.
The Special Rapporteur was informed by government officials that this de facto situation will also be enshrined in law. A new bill was being prepared for adoption, in which crimes against civilians were to be explicitly removed from the jurisdiction of the military courts. The Ministry of Defence assured the Special Rapporteur that this move enjoyed its support. In spite of these assurances, given without reservation to the Special Rapporteur, civil society members expressed concern that the bill might not be approved or might include limits that were incompatible with international law.. The Special Rapporteur stresses that the reform should be accomplished as a matter of priority; he will follow its progress with keen interest.
At the same time it will remain important to ensure that the civilian criminal justice system has the capacity to deal with the increased workload. Moreover, the Special Rapporteur recommends that Mexico should consider establishing civilian jurisdiction over all cases of homicide by the military, even when the victim is not a civilian.