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e Uncertain Defeat of Authoritarianism, Lawlessness and Human Rights in Mexico

Inaugural address as Visiting Professor to the UNESCO Chair in Education for Peace, Human Rights and Democracy 2010 delivered on 30 September 2010 at Utrecht University by

Mariclaire Acosta

Rector Magnifice: Introduction In Mexico the notion that people have innate rights has a long history. In fact, it can be traced back to the Colonial period when Fray Bartolomé de las Casas, Bishop of Chiapas, in a fierce polemic with the theologian Ginés de Sepúlveda, established that the vanquished Indians had basic rights deserving protection by the Spanish Crown. is eventually led to a special legislation, the famous Leyes de Indias. During the War of Independence from Spain, the Constitution of Apatzingán, initially drafted in 1814 by José María Morelos y Pavón, an insurgent priest, specified in clear terms that popular sovereignty and representation, universality of the law, freedom from slavery and torture, as well as the obligation of the legislature to pass laws ensuring just wages and education for the poor, were the fundamental rights of the americanos, inhabitants of the former colony of New Spain. Upon achieving independence, the Constitution of 1824 protected individual rights, and this protection expanded in 1857. In fact, the constitutional history of the country is closely linked to the notion of human rights. One of the provisions established by Mexico in the Treaty of Guadalupe Hidalgo of 1848, after its defeat in the Mexican-American War, was that slavery not be reinstated in the territories ceded to the United States. e Constitution of 1917, resulting from the 1910 Revolution, was the first to establish the protection of social rights, two years before the Weimar Constitution in Europe. During the first part of the twentieth century, Mexico developed a foreign policy consistent with the principles of peace and non-aggression. is facilitated its adherence to the League of Nations, and later on, its endorsement of the UN Charter, and in 1948, of the Universal Declaration of Human Rights.

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Presently, the country is party to several scores of international human rights treaties designed 33to protect the full range of human rights. e Constitution mandates that these instruments be incorporated into domestic legal provisions. However, the profusion of constitutional provisions and international treaties does not mean that human rights are systematically promoted, or even respected. ey represent an aspiration rather than a reality. In fact, there are very few domestic legal remedies available to ordinary citizens, and the courts seldom uphold the rights proclaimed in international treaties, which have still to be harmonized with domestic law. On closer examination, many abuses are even encouraged by certain public policies and existing legal practices, a fact that has been widely documented by the human rights community. e challenges posed by the political and economic development of the country have made the numerous rights embodied in its succeeding constitutions more a desired goal than a reality. Legal protection of human rights in Mexico is blocked by the lack of adequate mechanisms for ensuring accountability of crimes and abuses committed both by state and non-state actors. is is caused by many factors, but among the most important are the deficiencies in the justice system, such as the lack of independence of the judiciary; the lack of effective remedies for the redress of victims of abuse; disregard for international human rights norms and standards in the legal system; ample discretionary powers given to authorities especially in the persecution of crimes; and the militarization of public security.1 e political system that emerged from the 1910 Revolution developed a political machinery of an authoritarian and corporativist nature, which has been characterized as “…secretive,

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Cfr. Naciones Unidas, Consejo Económico y Social, Los derechos civiles y políticos, en particular las cuestiones relacionadas con la independencia del Poder Judicial, la Administración de Justicia, la Impunidad, Informe del Relator Especial sobre la independencia de magistrados y abogados, Sr. Dato Param Coomaraswamy, presentado de conformidad con a resolución 2001/39 de la Comisión de Derechos Humanos, Adición, Informe sobre la misión cumplida en México, E/CN: 4/2002/72/add. 1, 24 de enero de 2002 and Alfredo del Valle y Angelina del Valle, Informe sobre la situación jurídica de los derechos humanos en México, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos AC, México DF, 1996 p. 2 3

centralized, uninnovative, discontinuous, arbitrary, uncoordinated, and personalistic. 2 A system of this nature naturally fostered a culture that emphasized loyalty and obedience to those in power rather than the assertion of rights. A political transition culminated in the year 2000 with the establishment of electoral democracy at the federal level. is produced some favorable changes for human rights, but they have be4en clearly insufficient. Mexico is still a long way from a citizen’s democracy based on the rule of law. e defeat of the PRI in the presidential elections of 2000, the party that ruled Mexico since 1929, was the result of the incremental changes produced over time by a succession of political struggles under a repressive regime. ese elections were among the first truly democratic and competitive ones held in the whole history of the country. For once, political change did not result from revolutionary violence and bloodshed, but from the exercise of political and civil rights. e election that brought Vicente Fox, a candidate of the opposition, to power, resulted from a decade-long, peaceful mobilization -led by a coalition of political parties and civil society organizations- of thousands of people over the right to participate in free, fair and authentic elections. e mere fact that these elections resulted in the peaceful takeover of government by a political coalition which was able to vote out a party that had exercised absolute control over the political machinery and the State apparatus, for more than seven decades, makes them a historic turning point. However, this does not mean that this alternation in office, important as it was, has produced significant changes in the structure of power and the way that it is exercised. True, authoritarian presidentialism was replaced by a multi-party system in which reasonably fair elections are carried out regularly, and where clear rules and a more or less level playing field are guaranteed by an autonomous body, the Federal Electoral Institute and an Electoral High Court (Tribunal Federal Electoral). is is no small thing in a country where former
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Roderic Ai Camp, Apud, Luis Escala Rabadán, e Human Rights Movement and the Achievement of Democracy in Mexico (1977.1993), University of California, Department of Sociology, Master’s Dossier, May 31, 1994, 53p. 4

presidents had almost imperial powers. However, the old political practices of yore are still alive and well: corruption, impunity, patrimonialism, corporativism and clientelism, to name but a few, are common. ey are no longer the exclusive heritage of the ruling party, but seem to have extended to the whole political spectrum.3 Democratic elections in Mexico have done very little to change old practices and institutions. us, democracy, or what is perceived as such, has not necessarily produced a significant improvement in people’s lives. ere have been no innovative public policies to deal with structural problems such as the poverty and acute inequality that characterize Mexican society. Exclusion and marginalization from public services continues to be high, and good governance is lacking. Disenchantment with politics and with this form of government is growing steadily4 . ere has been an active human rights movement in Mexico since the mid 1980’s. Its strategies include both legal defense as well as the promotion of human rights at the local and national level, sometimes in partnership with groups based in the United States or Europe. is support has been crucial for developing the capacity of the many organizations devoted to human rights to help bring about a degree of democratic change in a country molded and shaped by seven decades of authoritarian rule. But today human rights in Mexico must be viewed and understood in the light of this incomplete transition to a fully democratic regime.5 Undoubtedly, if we compare the situation of political rights and fundamental freedoms in today’s Mexico with the one that prevailed thirty years ago, the change has been immense and should not be underestimated. However, human rights abuse continues to be endemic. To make matters worse, the implantation of an aggressive and ambitious policy to combat organized crime by the present government has done little to improve the situation. Quite the opposite: it has had a pernicious effect on social cohesion and possibilities for further democratic development. Authoritarianism, albeit, in a different disguise, is still a fact of life for many, and the enjoyment of human rights, and even of certain ones such as the right to
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Maria Amparo Casar, “La alternancia: Diez años después, 1. Ni mejores ni peores”, Nexos, num. 392, agosto 2010, pp. 16-17. Corporación Latinobarómetro, Informe 2009, http://elecciones.net/archivos/oultimo/LATINOBAROMETRO. Merino, Mauricio, La transición votada. Crítica a la interpretación del cambio político en México, 1a edición, México, F.C.E., 2003, 246p., pp 7-27. 5

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personal security, to access to justice and even to life itself, seem more unattainable than ever to people in certain regions of the country. Despite all of its efforts and achievements, the human rights movement has been powerless to alter these policies and this state of affairs. In the following pages I will attempt to describe the implications of this democratic deficit for the enjoyment of human rights of a country presently plagued with varying degrees of violence and insecurity. What I intend to share with you tonight is the first part of a research project that, thanks to the support of the Regional Office for Mexico and Central America of the Ford Foundation and of the generosity of the Faculty of Law, Economics and Governance of Utrecht University, which has given me the honor of appointing me the UNESCO Chair at the Netherlands Institute of Human Rights, I intend to carry out during the next three months. My intention is to attempt a deeper understanding of the current challenges and opportunities offered to the human rights movement by this complex and contradictory panorama. One that will facilitate the confection of an agenda for moving forward in the process of building a more just and equal Mexico, and in which security and human rights will not be regarded as opposites, but as necessary complements in the process of building a more sustainable democracy. In so doing, I have in mind the words of Judge omas Buergenthal, who in one of his essays on the development of human rights from a historical perspective,6 reminds us that the emergence of international human rights has generated a worldwide revolution, and that indeed the extraordinary growth and development of human rights law and of the mechanisms for their protection, in just a few decades, can attest to the fact that they have succeeded in capturing the energy and imagination of vast portions of mankind. But nonetheless, violations of human rights are deep rooted in the political, social and economic structures of specific societies, as well as in many of their cultural notions. Removing these causes of abuse is a slow and painful process and will take much more than the sixty odd years that have elapsed since the proclamation of the Universal Declaration of Human Rights. In the case of contemporary Mexico, these thoughts could not be more fitting.
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omas Buergenthal, “International Human Rights in a Historical Perspective”, Human Rights: Concept and Standards, ed. Janusz Symonides, Dartmouth, UNESCO Publishing, 2000, 373p., p 4. 6

e Current Political Context for Human Rights Human Rights Become a Legitimate Concern In his inaugural address of December 1st 2000, President Fox announced that, as befitting the first democratically elected government in nine decades, human rights would be a central concern for his administration and that he would put together a forceful policy in this area. His statement was not merely rhetorical; he designated a civil society activist to be his Special Ambassador for Human Rights and Democracy, and followed this nomination with several initiatives such as the signing of a cooperative agreement with the United Nations’ High Commissioner for Human Rights on his first day in office, something that his predecessor had been very reluctant to do. Shortly after, this unprecedented step was complemented by a startling announcement made by the Foreign Minister during a session of the UN Human Rights Commission, in which he welcomed international human rights monitors of all stripes and colors to visit the country. is openness to international scrutiny without previous invitation responded to the position of the new government, which regarded human rights as absolute and universal values, a radical break from the defensive and self-serving interpretation of the noninterference doctrine used before. e open invitation to human rights defenders was complemented by other measures. Civil society participation in the design and supervision of public policy initiatives in human rights of the federal government was encouraged and institutionalized. ese first steps created a more favorable climate for human rights. ey also posed new challenges to a human rights movement, more used to confrontation and denunciation than cooperation with government initiatives that they, furthermore, had regarded as a part of their agenda in the previous regime. In any case, respect for human rights became a legitimate political claim and ceased to be regarded only as a confrontational device to discredit the government as it had under the previous regime.

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In the domestic sphere, soon after the Inauguration, the President’s National Security Advisor, also a civil society appointee, reiterated the campaign promise to establish a truth commission charged with the investigation of the atrocities committed by past governments against political dissidents and put an end to their impunity. In the end, the promised truth commission was replaced by a long report on the abuses committed by the security forces during the counterinsurgency campaigns carried out against armed groups in the 1970’s and 1980’s, commonly known in Mexico as the “Dirty War”. It was presented to the public in a carefully staged ceremony celebrated towards the end of Fox’s first year in office, e report, produced by the National Human Rights Commission, provided detailed information on the fate of five hundred and thirty two victims of “disappearances” carried out during this period whose families had filed claims on their cases twelve years before, when Carlos Salinas first created the Commission. It described the torture and other forms of illegal and degrading treatment that these victims had suffered by their captors, all of them state agents, and ended with a recommendation to investigate the crimes and punish the perpetrators. In response, the government created a Special Prosecutor’s Office with an ambitious mandate. In addition, several million pages of secret files of the former intelligence agencies, assembled in the period from 1952 to 1985 were declassified with the intention of serving as a basis for the investigations of the Special Prosecutor. is was done under a new Federal Law on Transparency and Access to Information (Ley Federal de Transparencia y Acceso a la Información Pública Gubernamental), a successful civil society legislative initiative implemented in 2002. For the first time ever, some of the most notorious crimes against political opponents perpetrated by former governments became public knowledge. A sea- change in the culture of secrecy that had kept a shroud over so many aspects of public life, had taken place. e initiative of establishing a Public Prosecutor’s Office was greeted as an important achievement by all of the political parties, but with great skepticism by civil society organizations, who would have preferred a truth commission. e response of the victims’ organizations was mixed. Some of them, the more political ones, backed it; others preferred to wait for results, and some rejected it outright. In any case, the Special Prosecutor’s Office began
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its task with the support of a Citizen’s Committee made up of former victims and some prominent public opinion leaders. It was initially well funded, but with time it became evident that it lacked the proper tools, the legitimacy and the independence to produce convincing results. In all fairness, it achieved a handful of indictments, among them that of former President Luís Echeverría, and of three high level officials of the former security apparatus, such as Miguel Nazar Haro, the head of the infamous White Brigade or Brigada Blanca. is was indeed an unprecedented event, unthinkable only a few years before. However, none of these indictments led to a conviction.7 At the end of the six- year term of office of Vicente Fox, the Special Prosecutor’s Office was disbanded, and the declassified archives were put under reserve. A “White Paper” on the period of the Dirty War, written jointly by the research staff of the Special Prosecutor’s Office and some members of the Citizen’s Committee, was banned from publication, and hopes for the accountability of these crimes were dashed. As with most of its program, the Fox government fell short of its many promising first steps. Despite the initial good intentions, the efforts to end impunity for past abuses and to find ways of tackling the deeply ingrained human rights problems with the help of the international community, were not supported by any significant domestic reforms, and were gradually abandoned.8 It is by now common knowledge that President Fox dilapidated his enormous political capital during the first crucial months of his administration, to effectively confront the enormous legacy of impunity and corruption of the previous regime. His timidity and lack of decisiveness in seeking accountability for the crimes and excesses of the past, coupled with the absence of any serious attempt to ensure a new form of governance during that period, have had longterm consequences for human rights. After the enormous expectations fostered during his

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For further information on this mechanism for dealing with the crimes of the past, Cfr., M. Acosta and Esa Ennelin, “‘e Mexican Solution’ to Transitional Justice” in Naomi Roht Arriaza and Javier Mariezcurrena, Transitional Justice in the Twenty First Century, UK, Cambridge University Press, 2006, pp. 94-120; Sergio Aguayo Quezada and Javier Treviño Rangel, “Fox y el pasado. La anatomía de una capitulación”, Foro Internacional, vol. 47, num, 4(190), 2007, pp. 709-739. Paul Seils, A Promise Unfulfilled? e Special Prosecutor’s Office in Mexico, New York, International Center for Transitional Justice, June 2004, 33 p. and Human Rights Watch, Lost in Transition, New York, Human Rights Watch, 2006, 150 p. Cfr. Human Rights Watch, op. cit. 9

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campaign, a sense of disappointment and frustration settled in again, and reinforced the public’s basic mistrust of governmental institutions and policies. Political competition and antagonism ushered in the fragmentation of power at the national level, and the ability of the federal government to rule effectively over many crucial issues was undermined. e federal structure of Mexico is comprised of thirty-two states and two thousand four-hundred municipalities, spread across a vast and diverse territory, characterized by extreme regional and economic disparities. Political pluralism and free and fair elections did not reach all of these entities at the same time. In fact, even today, only 19 of the 32 states have had elections resulting in a change of ruling party.9 e informal power arrangements, complicities and coercive capacities of the ancien régime were not replaced by the rules and mechanisms of democratic governance. is disparity has given way to a situation where state governors and local chieftains exercise considerable power over their respective domains, and if they so choose, are less prone to cooperate with the federal authorities. e impact of this situation on public security and human rights has been dire. Persistence of Violence and Abuse e political violence that prevailed in the years during the transition, and which in places like Chiapas, Guerrero and Oaxaca led to the emergence of armed conflict has declined without disappearing completely.10 In some places like Oaxaca, popular discontent erupted in a succession of violent protests that were severely repressed by the local government. Hopefully, the recent elections in that State, resulting in the defeat of the PRI which was dislodged from its 80 year hold on power, will quell some of this violence and modify the existing pattern of political exclusion. In other parts of the country politically motivated violence has been
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Maria Amparo Casar, op. cit., p. 17. In the summer of 2006 the city of Oaxaca capital of the State of Oaxaca, in the southwest of Mexico, became the site of a violent and bloody protest, after the State government repressed a teacher’s strike. e protest, led by a coalition of popular organizations (APPO) was eventually put down forcibly after several months, with the unwilling support of the Federal government. e excessive use of force by government forces, especially the state government, produced a pattern of serious and extended human rights abuse, including the death of Brad Will, an American journalist who was covering the events. 10

replaced by widespread drug-related criminal violence, especially in the states that harbor the drug routes into the United States such as Chihuahua, Durango, Coahuila, Nuevo León, and Tamaulipas, as well as in Guerrero and Michoacán, on the Pacific coast. Although the overtures to the EZLN (the Zapatista National Liberation Army which rose up in arms during a brief period in 1994) in Chiapas, made by the Fox government did not produce a real peace process, the advent of a democratically elected local government in this state did provoke a de facto entente and, in some isolated cases, led to actual pacification. However, latent conflict prevails in vast regions of Chiapas and the presence of the military continues to be excessive. In addition, human trafficking of migrants from Central and South America and drug trafficking from Guatemala and Honduras into Mexico have created a precarious and potentially explosive human rights situation in this state situated on the southern border of the country. Serious human rights abuse is by no means absent in contemporary Mexico. Quite the contrary, long-standing patterns of a structural nature, such as impunity, corruption and discrimination have emerged in all of their ugliness. Public insecurity and organized crime coexist with the more traditional forms of human rights abuse such as the excessive use of force by the police and the criminalization of social protests. Arbitrary detention and torture both by the police and the military are frequent. ese practices occur in remote rural areas where impoverished campesinos, many of them indigenous, struggle against powerful interests to defend their natural resources and traditional way of life, as well as in the towns and cities, especially those where, since 2006, turf wars between criminal gangs have increased. Massive illegal migration to the United States by Mexicans and Central Americans, human trafficking, child prostitution, and an exploding drug problem, to name but a few, are the new sources of abuse which are replacing political strife. e brutal killing of 72 Central American migrants by members of a drug gang in Northern Mexico, which took place recently, is but an example of these problems. A report submitted in 2004 to the UN Human Rights Commission on the situation of the human rights of the indigenous people of Mexico by the UN Special Rapporteur, concludes that military participation in public security operations and criminal investigations in many indigenous territories all over Mexico has produced a host of human rights violations which
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encompass arbitrary detentions, sexual abuse of women and in some cases, even summary executions.11 Two cases of rape by the military in indigenous territories are under examination by the Inter-American Court of Human Rights. Undoubtedly the most notorious example of human rights abuse in Mexico, which has received world-wide attention, are the numerous killings of young girls and women in Ciudad Juárez, Chihuahua, the epicenter of the current warfare of criminal gangs, just on the other side of the US border from El Paso, Texas. Since 1993, scores of young females in this industrial city have been reported to the local police as disappeared, only to be found weeks later, in the outlying desert, murdered and with visible signs of torture and mutilation. e overwhelming majority of these cases have remained unpunished, despite intense national and international pressure. e US Department of State’s 2009 report on human rights in Mexico, summarizes the situation in the following terms: “unlawful killings by security forces; kidnappings; physical abuse; poor and overcrowded prison conditions; arbitrary arrests and detention; corruption; inefficiency, and lack of transparency of the judicial system; confessions coerced through torture; violence and threats against journalists leading to self-censorship. Societal problems included domestic violence, including killings of women; trafficking in persons; social and economic discrimination against some members of the indigenous population, and child labor”.12 A New Turn of the Screw: A Country at War with Itself After a turbulent period of political strife and extreme ideological polarization in which the legitimacy of his very election in 2006 was questioned, Felipe Calderón, Fox’s successor and son of one of the stalwarts of the center-right Partido Acción Nacional (PAN), took office under extremely difficult circumstances. Shortly after, he announced a crusade to combat organized
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United Nations, Economic and Social Council, Indigenous Issues, Human Rights and Indigenous Issues, Report of the Special Rapporteur of the Situation of Human Rights and Fundamental Freedoms of Indigenous People, Rodolfo Stavenhagen, Addendum, MISSION TO MEXICO, E/CN.4/2004/80/Add.2, 23 December, 2003 US State Department, 2009 Human Rights Report: Mexico, http://www.state.gov/drl/rls/hrrpt/ 2009/wha/136119.htm. 12

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crime, especially the drug cartels, and declared it a priority for his administration, even to the detriment of certain human rights, such as due process guarantees. e methods utilized in this endeavor are mainly the use of force against the drug cartels by joint efforts of the civilian police forces and the Armed Forces. In the Calderón administration, the second panista government of the post-transition period, security concerns have effectively trumped human rights.13 e crisis caused by rising crime rates and the penetration of the security forces (especially the police) by organized crime, had led previous administrations to gradually rely on the military for public security.14 Under the present government, this tendency has been definitely consolidated. Currently the Mexican armed forces play a preponderant role in law enforcement. e government’s strategy to combat organized crime, with its heavy reliance on the use of public force, is a source of serious human rights abuse, which generally goes unchecked both by the civilian and military justice systems and, until very recently, by the official human rights commissions. Impunity of human rights abuse by the military is entrenched. According to the Mexican government’s report to the UN Human Rights Committee, complaints regarding abuse by the military, had reached a total of 1, 836 from 2006 to 2009. Other calculations based on reports received by the National Human Rights Commission take the figure even further. ese complaints have resulted in only one conviction: a soldier who was sentenced to nine months in prison for killing a civilian at a military checkpoint.15

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For a troubling and detailed study of how security concerns have overtaken human rights under Felipe Calderón, Cfr. Alejandro Anaya, Insecurity, human rights and the definition of government preferences in contemporary Mexico, Mexico, International Studies Division, Centro de Investigación y Docencia Económicas, (CIDE), 2010, 41p. (Unpublished paper presented at the conference La reforma del sector seguridad en contextos de narcotráfico y crimen organizado, Colombia y México en una perspectiva comparada, sponsored jointly by El Colegio de México and CIDE, Mexico DF, June 29-30, 2010). For a thorough analysis of this trend and its impact on civil-military relations Cfr. Roderic Ai Camp, “Armed Forces and Drugs, Public Perceptions and Institutional Challenges”, (Unpublished paper), 45 p. For a more in depth analysis of the impact of the incorporation of the Armed Forces in public security operations for the legal protection of humanrights under the Zedillo administration, Cfr. Alfredo del Valle y Angelina del Valle, op. cit. 29 p. UN Human Rights Committee, 2010, parr.91) Apud. Alejandro Anaya, op. cit., pp. 15-17; Cfr. Human Rights Watch, Impunidad uniformada, Uso indebido de la justicia military en México para investigar abusos cometidos durante operativos contra el narcotráfico y de seguridad pública, New York, Human Rights Watch, 2009, 85 p. 13

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According to official figures, the average rate of homicides in the country as a whole has decreased in the past fifteen years. It has however, increased dramatically in the last three years in certain localized areas where the dispute over the control of the drug routes into the U.S. market are taking place.16 It is an undisputed fact that penetration of the security and justice systems by drug cartels, also a legacy of the past, had become a very serious problem by the end of the Fox administration. e reasons for this are complex, but again the destruction of the old informal mechanisms with which the PRI governments had held them in check, stands out. Obviously something had to be done to control them, as they held enormous sway over several state and municipal governments, even posing a threat to national security. However, it is extremely debatable whether the methods employed by the Calderón government have been effective.17 e strategy of breaking up the drug cartels that had gained control of important territories through a forceful policy of confrontation, detention of their visible heads and the confiscation of drugs, is not backed by a strong security and justice system, because these are virtually non-existent. e perverse and unintended consequence of this kind of approach is that it has fueled widespread violence and stimulated other forms of criminal activity such as kidnappings and extortion, which generally go unpunished. According to a recent analysis, the policy has in fact resulted in the spread of cartel presence throughout the whole national territory.18 It is not my intention to carry out an analysis of the security policies of the current Mexican government. ese are beyond the scope of my expertise, but I do intend to gauge their impact on human rights. Simply judging by the death toll that these policies have generated in the three years of its implementation, -more than twenty thousand deaths registered by the media,
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An interesting analysis of the official figures for the rate of homicides committed in Mexico from 1990 to 2007 is provided by Malgorzata Polanska, “Los homicidios y la violencia organizada en México”, Raúl Benítez Manaut et al, Atlas de la seguridad y la defensa de México 2009, 1a ed., México, Colectivo de Análisis de la Seguridad con Democracia, 2009, 406 p., pp. 122-126. e methods of the Calderón government are similar to those employed in Colombia: the deployment of more than 50, 000 troops and members of the federal police in the whole national territory; the reorganization of police agencies and an effort to eradicate corruption. D. Shirk, ¿Eliminar la prohibición?, El Universal, México D.F., 5 de agosto 2010. Eduardo Guerrero Gutiérrez, “Los hoyos negros de la estrategia contra el narco”, Nexos, México, num. 392, agosto, 2010, pp.27-35. 14

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plus the “collateral damages” (a euphemism employed by President Calderón himself) of dozens of “innocent civilians” caught in the crossfire – it would seem that the price paid by Mexican society is disproportionately higher than the benefits gained by waging this kind of war on the drug cartels. Especially disturbing is the lack of reliable information on most of these casualties. After much prodding from the media, and thanks to the use of the federal transparency law, the Attorney General’s Office recently revealed that approximately 22 700 thousand people have died as a direct result of armed confrontations between members of the cartels and the security forces. Only a small fraction of these deaths, 735, have been investigated by the federal authorities and their perpetrators have been convicted.19 A few days later the national security agency, the CISEN put the figure at twenty eight thousand. 20 e so-called “war” on the drug cartels has unleashed terrible violence and a heightened state of insecurity in many regions of the country where decapitated bodies and otherwise mutilated corpses are displayed publicly. e government insists that most of this violence is the result of disputes among the cartels themselves.21 Regardless of the fact that we are talking about human lives, the lack of credible data further undermines trust in government institutions. President Calderón himself had to face the devastated parents of a group of adolescents executed a few months back in Ciudad Juárez and apologize for demeaning their children by referring to them as “delinquents”. One of them had actually won an award as the best student in his State. He has recently admitted that the government has not been able to communicate effectively what it is doing.22 e fact that the available figures to this effect are not the result of criminal investigations increases the perception of insecurity. In the areas which are the hardest hit by the violence, this rhetoric has failed to assuage the anger and the fear of large
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Nancy Flores, “Una farsa, la ‘guerra’ contra el narcotráfico”, Contralínea, 23 de mayo de 2010. El Universal, México, DF, Año 93, No. 3386, August 4, 2010. According to the figures quoted by President Calderón himself, in 70% of the 28,000 deaths reported by the CISEN, the cause is death is known. Ninety per cent of these deaths are of persons associated with criminal organizations, 6% are authorities, and approximately 1% are “innocent victims”, FCH “no esperará” a que políticos se unan a la lucha, El Universal, 5 de agosto de 2010. e President made these comments in the context of a meeting held with academics and civil society organizations specialized in security issues, during a special event which took place during the first weeks of August, 2010: Diálogo por la Seguridad, Evaluación y Fortalecimiento, El Universal, 4 de agosto de 2010. 15

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sectors of the population, especially when coupled with the rising tide of armed robberies, kidnappings, rape and other forms of violent crime perpetrated by the gangs themselves, which usually go uninvestigated and unpunished. Especially disturbing is the inability of the justice system to investigate and punish these crimes. Impunity for violent crimes is chronic, reaching more than 98% according to reliable estimates.23 It goes hand in hand with a high rate of incarceration of petty criminals, many of them coerced into confessing crimes by the generalized use of torture and other forms of intimidation of suspects. e false notion that human rights are an impediment to security is very deeply ingrained among law enforcement officials and in the justice system. It is also ingrained among a sizeable minority of the public who believes it is all right to abuse arrested alleged criminals. Regrettably, it is also reinforced and upheld by unfortunate remarks of high placed officials such as those made by the former Minister of the Interior, Fernando Gómez Mont, who publicly chided the official human rights commissions for investigating and documenting serious abuses committed by the security forces, especially the military, in fighting organized crime.24 e Calderón government has continued to pay lip service to the human rights policy of his predecessor, but in actual fact, it has done little to uphold it. e Armed Forces carry out most of the law enforcement operations and maintain their immunity from civilian courts, despite

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Desconfían ciudadanos de las instituciones que imparten justicia en el país. Se castiga solo el 1% de delitos, Reforma, México DF, 29 de agosto del 2009. Cfr. Instituto Ciudadano de Estudios sobre la Inseguridad AC, Bases de política criminológica para México, www.icesi.org.mx Ciudad de México, 28 de junio de 2010, Carta de las organizaciones de derechos humanos dirigida al Lic. Fernando Gómez Mont Urueta, Secretario de Gobernación en la que éstas externan su extrañamiento por sus declaraciones en el marco de la Jornada 2010 de Prevención de la Tortura, Comisión Mexicana de Defensa y Promoción de los Derechos Humanos AC. 16

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the numerous allegations of abuse committed by them.25 Recommendations made by international bodies are mostly ignored or followed through at the minimum level, especially those having to do with the right to life or to the physical integrity of endangered human rights defenders and the use of military jurisdiction to investigate crimes committed against civilians26 e recent hesitation of the Supreme Court to even discuss the implementation of a ruling of the Inter-American Human Rights Court in this regard is an eloquent example. In many quarters, the long-standing tradition of secrecy and opacity is alive and well, as well as traces of the past chauvinistic and defensive attitude towards international supervision. A recent example of this attitude was the denial by the Ministry of Foreign Affairs to allow NGO’s to obtain a report by the UN Subcommittee for the Prevention of Torture of their visit to

25

Article 129 of the Constitution explicitly states that in times of peace no military authority can exercise any function that is not strictly connected to military discipline (En tiempos de paz ninguna autoridad militar puede ejercer más funciones que las que tengan exacta conexión con la disciplina militar, Art. 129, Constitución Política de los Estados Unidos Mexicanos). However, successive governments since the mid-nineties have promoted legal changes to allow the military to intervene in public security operations under certain circumstances, Alfredo del Valle y Angelina del Valle, op. cit., pp. 22-23. ese legal changes were challenged as unconstitutional in 1996, but the Supreme Court ruled in favor of the government, Cfr., Ejército, Armada y Fuerza Aérea. Su participación en auxilio de las autoridades civiles es constitucional (Interpetación del Artículo 129 de la Constitución), Registro No. 192080, Localización: Novena Epoca, Instancia: Pleno, Fuente: Semanario Judicial de la Federación y su Gaceta XI, Abril de 2000, Página: 549, Tesis: P. /J. 38/ 2000, Jurisprudencia, Materia(s): Constitucional. e Supreme Court also explicitly ruled that when the Armed Forces participate in public security operations, they must abide the legal order established in the Constitution, the laws that emanate from it, and the international treaties that are consistent with it, according to article 133 of the Constitution: Es constitucionalmente possible que el Ejército, Fuerza Aérea y Armada en tiempos en que no se haya decretado suspension de garantías, puedan actuar en apoyo de las autoridades civiles en tareas diversas de seguridad pública. Para ello, de ningún modo pueden hacerlo “por sí y ante sí”, sino que es imprescindible que lo realicen a solicitud expresa, fundada y motivada, de las autoridades civiles y de que en sus labores de apoyo se encuentren subordinados a ellas y, de modo fundamental, al orden jurídico previsto en la Constitución, en las leyes que de ella emanen y en los tratados que estén de acuerdo con la misma, atento a lo previsto en su artículo 133, Registro 192082, Localización: Nueva Epoca, Instancia: Pleno, Fuente: Semanario de la Federación y su Gaceta, XI, Abril de 2000, Página 552, Tesis: P./J. 36/ 2000, Jurisprudencia, Materia(s): Constitucional. Comisión Mexicana de Defensa y Promoción de los Derechos Humanos A.C., Comunicado de Prensa; La Comisión Interamericana otorga medidas cautelares en favor de Silvia Vázquez y Blanca Mesina, defensoras de derechos humanos amenazadas por su labor de acompañamiento a familiares y víctimas de tortura bajo períodos de arraigo en las instalaciones militares en Tijuana, Baja California. El Estado mexicano no ha respondido adecuadamente ante este otorgamiento, 17 de junio de 2010. 17

26

Mexico,27 e UN report was confidential, but the Federal Institute for Access to Information (IFAI), forced the Ministry to make the report public under the federal transparency law .28 e Urgent Need for Institutional Reform e advent of democracy has not reached all of Mexico. e country is famous for its regional disparities, with a more urban, industrialized North and Center regions, and a poor and underdeveloped agricultural South, populated mostly by indigenous peoples. Many states and regions continue to be governed by regional power groups linked to the ancien régime. Many of the major abuses are perpetrated by local officials under local jurisdiction.29 Whistleblowers and human rights defenders in many areas of the country are still at serious risk, perhaps even more than before. In fact, several of them have actually lost their lives.30 On the other hand, electoral democracy has fostered the growth of civil society and has had an

27

Naciones Unidas, Protocolo facultativo de la Convención contra la Tortura y Otros Tratos o Penas Crueles, Inhumanos o Degradantes, Subcomité para la prevención de la tortura, Informe sobre la visita a México del Subcomité para prevención de la tortura y otros tratos o penas crueles, inhumanos o degradantes, CAT/OP/MEX/R.1, 27 de mayo de 2009 Centro Nacional de Comunicación Social, Se publica informe de la ONU sobre tortura y tratos inhumanos en cárceles mexicanas, México DF, 11 de mayo de 2010. For a well documented report on the vulnerability of human rights defenders at the local level, Cfr. OACNUDH, Defender los derechos humanos: entre el compromiso y el riesgo, Informe sobre la situación de los defensores de derechos humanos en México, México DF, Naciones Unidas, 2010, 50 p. Cfr. Agnieszka Raczynska, “Defensores de derechos humanos en México en la mayor vulnerabilidad”, dfensor, Organo oficial de difusión de la Comisión de Derechos Humanos del Distrito Federal, Número 7, Año VIII, Julio de 2010, pp. 6-10. According to the Inter-American Press Association more than 56 journalists have been murdered in Mexico since 2005, and in 2010 alone 12 journalists have been killed and 8 have disappeared, e Wall Street Journal, August 20, 2010. ese deaths are mostly unpunished and are attributed to local law enforcement authorities in connivance with organized criminals. e escalation of violence against journalists has prompted the recent visit of two independent experts from the UN Human Rights Council and from the Inter-American Human Rights Commission of the OAS, to visit the country and report on the situation to their respective organizations on the state of the right to freedom of expression in Mexico. 18

28

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impact on the way human rights are perceived by large sectors of the public.31 It has also stimulated mobilization of civil society in all sorts of initiatives. Despite all of the setbacks and regressions described above, the government is still obligated to acknowledge the importance of human rights, especially in its current foreign policy, however watered-down it may be, and even if it only pays lip service to them in the domestic sphere.32 In order to consolidate the gains made by its democratic transition, Mexico must move forward decisively to implement a second set of reforms for the creation of new institutions and practices in order to ensure democratic governance. ree issues require urgent attention: the present federal structure, the justice system and the lack of effective mechanisms for citizen participation in public affairs. Foremost among these is the overhaul of the justice system in order to provide a minimum of public and legal security to the population. At present it is an antiquated inquisitorial system that breeds corruption, inefficiency, and ultimately, lawlessness. It basically punishes the poor and the disenfranchised for minor offenses, and encourages impunity for serious crimes. More than 70% of criminal trials in Mexico deal with burglaries of less than five hundred dollars, and most of the defendants were caught in flagrancy.33 It functions under a formalized set of rules and procedures by which police corporations, prosecutors and judges operate in highly opaque circumstances. Until very recently the presumption of innocence in the criminal justice system was non-existent, and it is estimated that 40% of the prison population is in pre-trial

31

“e election (December 2000) was a culmination of profound political opening in the last fifteen years, during which many Mexicans found it easier to express their political choices, raise complaints about human rights abuses, and advocate change.” http://www.humanrightsfirst.org /mexico-policing/mxp.02.htm An interesting indicator of the importance that the Mexican government pays to human rights in the international bodies charged with the oversight of human rights was the size and political weight of the Mexican delegation who attended the session of the Universal Periodic Review carried out by the Human Rights Council of the United Nations in June 2009. e delegation was composed of numerous officials, and was headed by the Minister of the Interior and the Vice-Minister for Human Rights and Democracy of the Ministry of Foreign Affairs. Javier Cruz Angulo, “La reforma penal, ¿para qué es y con qué se come?”, El Universal , México, 27 de Julio de 2010. 19

32

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detention.34 ere is a serious question about its capacity to withstand the enormous financial pressure and violence of organized crime. In its evaluation of the state of human rights in Mexico, published in 2003, the United Nations High Commissioner’s Office for Human Rights concluded that the condition of the justice system was the main obstacle for the enjoyment of human rights in the country. It recommended a far-reaching reform of this system.35 After a failed attempt in 2004, the Congress approved such a reform that was voted into the Constitution in 2008. is reform is intended to replace, over the next eight years, the current system with a more modern, adversarial one, with presumption of innocence for the accused; oral trials with public proceedings and evidence presented orally to the judge; as well as sentences based on evidence presented at the trial.36 So far the reform is haltingly underway in eight states, among others: Chihuahua, Baja California, Oaxaca, Guanajuato and Aguascalientes.37 Unfortunately its potentially beneficial effects have been considerably stymied by the introduction into the reform package of exceptional rules for the investigation of cases of organized crime that do not conform to due process standards. Such is the case of the practice of arraigo, which allows for a form of detention without charges under police custody of suspects participating in organized crime for

34

Woodrow Wilson Center Mexico Institute, “A Broad Agenda for Deepening Mexico-U.S. Security Cooperation, (Draft for Discussion)”, Washington DC, March 12, 2009. Oficina del Alto Comisionado de las Naciones Unidas para los Derechos Humanos en México, Diagnóstico sobre la situación de los derechos humanos en México, México, OACNUDH, 2003, pp. 11-42. A fascinating appraisal of the prospects for this reform is provided by Niels Uildriks in Mexico’s Unrule of Law, Implementing Human Rights in Police and Judicial Reform under Democratization, Lanham, Lexington Books, 313 p. Secretaría de Gobernación, Secretaría Técnica del Consejo de Coordinación para la Implementación del Sistema de Justicia Penal, Informe de la situación de la reforma en 13 entidades federativas, México, 2010. pdf. 20

35

36

37

up to 80 days. is practice, in the short period of its implementation, has led to numerous abuses and encouraged torture.38 e process of reform has been slow. In the last two years, only 13 states out of thirty two have undertaken the necessary steps to replace the old inquisitorial system by the more modern adversarial one.39 e state of the justice system in Chihuahua, which started the process very early on, is a living example of the many obstacles and difficulties that have to be overcome in order to guarantee access to justice of the numerous victims of criminal violence. Recently, the State prosecutor claimed that the reform of the justice system in Chihuahua had become another victim of the war against the drug cartels given its inability to investigate the numerous violent crimes committed in that state every day.40 Around the same time, the Mexico City prosecutor flatly asserted that an adversarial system in the city would be useless to fight organized crime.41 So far, reform of the criminal justice system has left military immunity from civilian prosecution and courts untouched. In the present situation public security in many areas of the country has been virtually handed over to the Armed Forces. Obviously this is a necessity, given the state of the police corporations in the country. It also continues to be supported by a majority of the population42 , who fear and mistrust police corporations, despite the fact that several civilians –among them families with their children- have been killed by members of the Armed Forces, and the subsequently crimes denied. However, it represents another serious threat to human rights.
38

Comisión Mexicana de Defensa y Promoción de los Derechos Humanos, Nota informativa, En el marco del diálogo bilateral con Estados Unidos en materia de derechos humanos, y según los términos de colaboración de la Iniciativa Mérida, la CMDPDH hizo llegar una carta pública a Michael H. Posner, Secretario para la Democracia, los Derechos Humanos y el Empleo en dicho país, 14 de Julio 2010. is transformation of the justice system is mainly being financed with resources from the United States Government under the Mérida Initiative. “La reforma judicial, otra víctima del sistema, Casi una centena de agentes caídos y más de veinte abogados asesinados le ha cobrado la mafia al sistema penal”, El Universal, México D.F., a 20 de julio de 2010. “Dudo de reforma judicial: Mancera”, El Universal, México DF, 20 de julio de 2010. Cfr. Roderic Ai Camp, op. cit. 21

39

40

41 42

Human rights only prosper in the context of a functioning democracy, one which is based on the rule of law and a judicial system that breeds confidence. Mexico urgently needs to implement effective mechanisms for accountability in order to provide the minimum necessary guarantees for individuals in the political community, institutionalized rules of behavior and coexistence among different political and economic actors, adequate government responsiveness to social problems, and last but not least, to meet the growing tide of criminal activity threatening Mexican society. e Protection of Human Rights Mexico developed an articulated social movement demanding explicit respect for human rights in the first part of the 1990’s. But it differs from other countries in the region in that its transition to democracy was the result of a long-term process of political liberalization and democratization, which some analysts pinpoint as far back as 1978. 43 Although the quest for the disappeared victims of Mexico’s guerrilla activity in the 1970’s spawned the first mobilizations of relatives in the same manner as other movements in the rest of Latin America, it was not given the same amount of support and attention by the international community. It was really in the mid nineteen eighties when the first independent human rights organizations emerged. Curiously, they tended to concentrate more on the refugee crisis and other issues pertaining to the civil wars in Central America than to actual problems having to do with political repression inside Mexico. e reasons for this omission are complex, and are more related to the peculiarities of the Mexican political system and culture than with the absence of human rights abuse. A few years later, in the midst of a growing rebellion against the rigged elections that had kept the PRI (Partido Revolucionario Institucional) in power for so long, the human rights movement blossomed, producing a host of advocacy organizations. eir efforts were fairly successful in opening a political space for many human rights issues. However, with the exception of
43

J. Mark Payne et. al., Democracies in Development, Politics and Reform in Latin America, New York, Inter-American Development Bank, 2002, p. 3. 22

political rights, their impact was limited and they were unable to ensure effective protection of other human rights, especially access to justice as well as social and economic rights. eir activism led to international attention of these problems, prompting President Salinas to respond to this criticism by unilaterally decreeing the creation of an ombudsman which very quickly developed into a national system for human rights protection. is system is composed of thirty two human rights commissions (one for every state) under the umbrella of a National Human Rights Commission whose presiding officer was initially hand-picked by the President of the Republic, but which has developed into a constitutionally mandated autonomous body over the years. It is a very developed system in terms of resources and coverage. Unfortunately, it is also ineffective and bureaucratic, and has had a modest impact on the human rights situation of the country as a whole.44 Over the years, and thanks to continual prodding by civil society organizations, these commissions achieved a certain degree of formal independence. Unfortunately, they are still strongly politicized and tend to favor the interests of local governments and political elites. ey also rely almost exclusively on Mexican law for their work, disregarding international human rights and standards. Recently, as a consequence of political change, some of these state sponsored human rights commissions have begun to take a more active role. In general, when they display a more active and forceful position in the defense of human rights, these bodies face formidable opposition from many quarters: both from within the system itself, as well as from governments and powerful interest groups entrenched at local and national levels.45 Although in most states the head of these institutions is formally elected by the local Congress, the position is in fact a political one, subjected to informal control by the reigning political clique.
44

Human Rights Watch, Mexico’s National Human Rights Commission: A Critical Assessment, New York, HRW, February 2008, Vol. 20, No. 1 (B), 132 p. is point is illustrated by the discouraging behavior displayed by the Mexican Federation of Ombudsmen (Federación Mexicana del Ombudsman) who voted against international support offered by the European Commission to carry out a program to strengthen state human rights commissions in 2003, under the European Initiative for Democracy and Human Rights. e argument employed by the leadership of the Federation at the time was the defense of national sovereignty. 23

45

Mexico City is rather an exception to this pattern, which is not surprising given the fact that most of the first human rights NGO’s emerged in the capital and have been closely identified with the left of center PRD (Partido de la Revolución Democrática), the party that has ruled this city since 1997. In the early years of the decade, almost immediately after the democratic transition took place, a prominent member of civil society, and a well-known advocate for democracy and human rights, was elected ombudsman for Mexico City. As a result of his leadership during eight years in office, the Human Rights Commission of the Federal District became an important hub for civil society, influencing government policy to the point where the Mexico City government now boasts a human rights program devised jointly by NGO’s and the three branches of local government under UN supervision.46 e program is just starting to be implemented, so its impact, especially on the traditionally vulnerable groups of women, children, lesbian-gay-bisexual-transsexual (LGBT) and indigenous populations at which it is mostly directed, has yet to be seen. e Commission’s efforts in influencing public security policy and access to justice in Mexico City have not been so outstanding. e Federal District has one of the worst prison systems of the whole country, and episodes such as a mob lynching in 2004 of three federal police officers while local policemen stood by, and the police raid on a popular disco in the summer of 2008, which resulted in the death of several adolescents and policemen, are two notorious examples of how human rights have not been able to penetrate the security institutions and the justice system.47 Since the National Human Rights Commission became an autonomous body in the late 1990’s, civil society organizations have tried unsuccessfully to influence the nomination process of the national ombudsman by the Senate. However, the position of President of the National Human Rights Commission is a highly political one, the result of negotiations among the political
46 47

Programa de Derechos Humanos del Distrito Federal, Ciudad de México, 2009, www. derechoshumanosdf.org.mx Comisión de Derechos Humanos del Distrito Federal, Informe especial sobre la situación de los centros de reclusión en el Distrito Federal 2005, México DF, CDHDF, 2006, 348 p. Comisión de Derechos Humanos del Distrito Federal, Informe especial sobre violaciones a los derechos humanos en el Caso del News’ Divine, México, CDHDF, julio de 2008, 127 p; Niels Uildriks, op. cit. pp. 35-61. 24

parties represented in the Congress. Although human rights NGO’s never fail to campaign for prominent human rights advocates as viable candidates, the most tangible result of their activity and pressure so far has been a more transparent process, but nothing more. Despite the existence of so many official bodies charged with the protection of human rights, neither the legal establishment nor the academic one for that matter, have been greatly influenced by concern for these issues. A survey published at the beginning of the decade revealed that less than twenty law schools in the whole country actually carried human rights in their curriculum. 48 When they did so, they tended to teach doctrine with no practical implications. e existence of an international body of human rights law, to which the Mexican state is bound to by virtue of its international obligations, is rarely if at all mentioned. Before the advent of electoral democracy, the generalized failure of the Mexican State to modify the existing pattern of human rights abuse and its impunity, led civil society to demand a greater role for the international community. e use of international human rights protection mechanisms in Mexico was introduced by an opposition party, the PAN, in 1989, as part of its strategy for contesting government rigged elections. Five years later, in the aftermath of the Zapatista uprising of 1994 in Chiapas, civil society organizations began using the international human rights system systematically, in their effort to curb abuse in the wake of this short-lived armed conflict. As mentioned before, pressure from outside for human rights improvement was met with a defensive attitude by the PRI regime. As a result of the radical change announced to the UN Human Rights Commission by the newly elected Fox government, in the course of three years, from 2001 to 2003, the country received the visit of fifteen experts and Special Rapporteurs from the UN and OAS human rights protection mechanisms, and that of scores of nongovernmental monitors. eir reports and recommendations, often directed at addressing structural aspects of the country’s institutions, were met with prompt replies, and the UN High Commissioner’s Office in Mexico was mandated to indicate, in an ambitious evaluation, where
48

Claudia Martín, et. al., Diagnóstico sobre la educación legal en derechos humanos en México, México DF., Washington College of Law y Universidad Iberoamericana, 2002, 1ª ed., 84p. 25

the main obstacles for the proper implementation of these recommendations lay. e evaluation was to be the basis for a National Human Rights Program. In December of 2003, this office completed an unprecedented diagnosis of the situation of human rights in Mexico. e exercise was carried out by independent experts under the supervision of a steering committee composed by representatives of the federal government, the state sponsored system for the protection of human rights and civil society. e process of elaboration of this document involved the participation of many hundreds of civil society organizations from all over Mexico as well as numerous government officials. e diagnosis attempts to identify the structural obstacles that impede the enjoyment of human rights in the country. It is based on the recommendations made by the UN and the OAS in this respect. It covers the full range of rights, civil, political, economic, social and cultural, as well as the rights of vulnerable groups. It also reviews the situation of the protection of human rights in Mexico and that of human rights defenders. It contains thirty-one core recommendations and numerous proposals for each chapter. Among the most important ones is the overhaul of the justice system. is evaluation came under concerted attack in 2003 by the national ombudsman and the political elite. It was eventually completed and published by the UN High Commissioner’s Office in Mexico, but it was not utilized as the basis for the National Human Rights Program that was eventually produced by the Fox government. ese events alienated several human rights NGOs, especially those closest to the opposition, and reinforced their hesitation to collaborate with a government they felt they could not fully trust. e introduction of international human rights law into the legal system through reforming the Constitution is still an unfulfilled goal. e process began in 2001, with active input from several human rights NGOs, under the auspices of the Ministry of Foreign Affairs. It was initiated as a follow up to the recommendation made by a special committee for the reform of the State, composed of prominent academics and civil society leaders under the leadership of Porfirio Muñoz Ledo during the transition period after the 2000 election. e initiative was subsequently led by the newly created human rights division of the Ministry of the Interior, and then by the UN High Commissioner’s Office for Human Rights in Mexico. After ten years,
26

the bill was passed in the Senate and is now in the Chamber of Deputies where it came under attack by several prominent members of the PRI.49 Mexico became party to the Inter-American Court in 1999, but the Zedillo government had not fully accepted any of the recommendations produced by the Inter-American Human Rights Commission, the other important organ of the human rights system of the OAS. After the transition, and as an indispensable element of the new foreign policy, a novel arrangement to deal with the bulky caseload in the Commission was designed to seek amicable settlements of these cases under the close supervision of this body. In just a few years, more than one hundred individual petitions from Mexican nationals were filed, mostly by NGOs, in the Inter-American Human Rights system. is activity is beginning to bear fruit: in the last four years the Inter-American Court for Human Rights, whose rulings are binding, has issued three landmark decisions. One of them deals with the political right of citizens to participate as candidates in electoral contests, another with the issue of impunity of the gender crimes (feminicidios) perpetrated in Ciudad Juárez, and the most recent one, with the practice of “disappearances” utilized by the Mexican Army during the “Dirty War” in Guerrero. e last two Court resolutions mandate far-reaching reforms in the justice system that so far, has not been carried out. In a short time, approximately eight hundred more petitions were lodged by NGO’s in the various protection mechanisms of the United Nations. ey dealt with violations of the right to life, physical integrity, freedom and due process. In addition, Mexican NGO’s began to routinely attend the hearings of the Inter-American Commission for Human Rights. During the last Universal Periodic Review of the human rights situation of the country, performed by the UN Human Rights Council in 2009, the NGO community actively participated. During the first half of the Fox government, human rights policy was delegated almost exclusively to the Ministry of Foreign Affairs. As we discussed earlier, this responded to a new
49

Cfr., Carta firmada por organizaciones internacionales, organizaciones de la sociedad civil, organizaciones de la Red Nacional de Organismos de Derechos Humanos “Todos los derechos para todos y todas”, académicos y académicas, dirigida al C.Dip. Francisco Rojas Gutiérrez, Coordinador Parlamentario del PRI, CC Diputadas y Diputados del PRI, H. Congreso de la Unión, México, Distrito Federal a 21 de abril de 2010. 27

vision for the foreign policy of a democratic Mexico. It was also a deliberate attempt to introduce some form of accountability by institutionalizing foreign pressure and to bring more leverage for change of the human rights situation. Gradually, the Ministry of the Interior took on a more active role in the task of coordinating the government’s efforts and devising a national policy for human rights. Aside from the cooperative agreement with the UN Office of the High Commissioner for Human Rights, the Foreign Affairs Ministry under Jorge Castañeda signed similar agreements with other UN bodies such as UNESCO as well as with the International Institute for Democracy and Electoral Assistance and the European Union. ese agreements attempted to focus on the areas that required urgent attention such as the design of a national human rights policy, the harmonization of domestic and international human rights law, the strengthening of the official human rights system and the introduction of human rights teaching into higher education. New international instruments for the protection of human rights were signed and reservations on many others lifted, in order to allow individuals to accede to these mechanisms. e resignation of Jorge Castañeda, the Foreign Affairs Minister in early 2003, and the dismal result for the PAN in the mid-term elections of that year, led to a change in the orientation of the Fox government. Two of his innovative policies in human rights and the environment, were put on the back burner, and the officials charged with carrying them out removed. By far the most important of all the measures introduced during the first years of the Fox administration was the passage of a federal law, mandating the freedom of information. is was not a result of a government policy, but of a civil society initiative in 2001 led by a coalition of NGO’s and academics known as the Grupo Oaxaca. An independent body, the Federal Institute for Access to Information, the IFAI (Instituto Federal de Acceso a la Información), was created to oversee its application. e law establishes the public character of all government information. It established a special category for information related to crimes against humanity and serious human rights violations, explicitly forbidding their concealment.50

50

Human Rights Watch, Informe Anual 2003 (Los sucesos de 2002), “México”, New York, HRW, 2003, 81p., pp. 1-5. 28

In recent years, the Supreme Court has begun to play an interesting role in seeking accountability for human rights abuse, through the use of a horizontal means of constitutional control mandated by the Constitution which allows it to investigate a situation of “grave violation of individual guarantees”, when this occurs and make recommendations to other government organs. e Court understands that a grave violation of these guarantees occurs when the relevant authorities have failed in their legal duty to provide the appropriate remedies to a generalized state of abuse of the fundamental rights of individuals. is curious mechanism is discretional. It dates back to 1917, and was only used once before the transition to democracy began. Since 1996 it has been activated a total of five times. Its results are mixed and difficult to determine. ey have not immediately resulted in justice or redress for the victims, but they have raised public consciousness of many salient issued afflicting the justice and security systems. All of these initiatives have certainly helped to foster change, but have also been clearly insufficient. ey have lacked sufficient political support, and have thus been unable to significantly impact the underlying causes of human rights abuse. More mundane concerns such as the struggle to retain power in a highly polarized political context, have replaced any serious attempt at establishing accountability and the democratic rule of law. Some of these gains were actually lost, such as the timid attempts to prosecute the perpetrators of past abuses, or the far reaching recommendations of the Supreme Court. e government’s “war on drugs”, its lack of interest in pursuing a strong human rights agenda; the present deadlock of the country’s political forces, coupled with the absence of a forceful, strategic pressure from civil society have resulted in the of stagnation, and in some areas such as public security, a downright regression, of human rights. e measures taken so far have not radically modified the pattern of abuse. In many cases, they even generated a strong reaction against reform from many quarters, not least among them, the official human rights establishment, which led to the reduction of the human rights agenda in domestic policy. Fortunately, some of these measures, however superficial they may seem, did succeed in bringing in new stakeholders, mainly civil society and the international community, into the process of changing long-standing patterns of abuse and impunity. is is what they had intended to do. Some positive results have been forthcoming.

29

But much more need to be done if Mexico is to become a modern, law-abiding country with an improved human rights record. is means many things, aside from reforming the institutions that deal with public security and the administration of justice. It requires the incorporation of international human rights law into domestic law, re-socializing and training lawyers, judges and law enforcement officials to use it. It also means upgrading the human rights commissions and helping civil society organizations to build and enhance their capacities. Last but not least, it requires a change in the political and institutional culture of the country. None of this can be achieved if there is no agreement that these issues are crucial for Mexico’s democratic development and the stability of the country. is means that schools, universities, professional and non-governmental organizations, unions, the media and political parties have to join a national effort to build a consensus and help produce the reforms and changes that the country needs so badly. Without this effort, progress in human rights will be small. Civil society is called upon to help build this consensus. Obviously, as with everything else, the future of human rights will be determined by political factors, especially, the extent to which democratic governance is being consolidated in Mexico today. At present the panorama looks murky. In terms of democratic development the country seems paralyzed, given the political elite’s failure to create a political consensus around the basic institutional reforms needed for Mexico to develop and become a solid democracy. Parties are in crisis, beset by power struggles, fragmentation and corruption. Political activity is becoming discredited. Civil society has never had so much freedom and space to develop, but it is disjointed and weak, without a common cause as in the recent past when the struggle for democratic elections was a unifying factor. In the latter part of the transition to a democratic electoral system, civil society organizations played an important role. eir more or less successful intervention in many of the initiatives in which they participated heightened the perception of their importance to a degree nobody had even dared to dream of a few years back. e political regime was so discredited and lacking in legitimacy that it yielded easily to public pressure. is led to a sort of “mirage effect” on the sector as a whole, leading it to believe that it had more power and influence than it actually did. It also obscured the underlying political dynamic in which other actors, namely political parties,

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were busily negotiating the agreements which would ultimately lead to a regime change based on a multiparty system and free elections. Time and the disappointing failures of the post-transition decade have shown that civil society organizations, and especially NGOs, are important actors, but that they still lack the strength and the tools to have a sustained effect on shaping public policy. e learning curve for the organizations has been steep and difficult, and many opportunities for affecting change have been wasted. However, one lesson is crystal clear, and that is that present day Mexico, for all of its challenges and dilemmas, cannot afford the luxury of ignoring its citizens and their organizations. Mexico’s citizens have been clamoring for public security for many years. Time and again they have been given hard-line, coercive policies in exchange for real security, and time and again these policies have failed. e present exacerbation of this type of approach to confront an undoubtedly serious threat to the whole of society, is reaching intolerable limits. e time is ripe for the human rights movement to confront the urgent need to link the concepts of democratic governance, security, justice and rights into a coherent strategy to help rebuild a deeply fragmented and disintegrated society, and to establish the presence of the State –not only of its coercive capacity– in the public domain. Words of gratitude Rector Magnifice Having made my closing remarks on the current challenges for human rights and democratic consolidation in present day Mexico, I would like to thank the University of Utrecht and its Board for my appointment as UNESCO Chair. I feel deeply honored by this distinction bestowed upon me. I also want to thank the Curatorium of the UNESCO Chair for having nominated me. I am especially indebted to Dr. Wil Pansters who proposed me, and who has given me invaluable support and advice throughout the whole process of my appointment and for the duration of my stay. His knowledge of Mexico and the subject matter of my interest, as well as the intellectual stimulation he has provided me with, are invaluable and has been a great incentive.
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My gratitude for the Director, Jenny Goldschmidt, and all of the professors and staff of the Netherlands Institute for Human Rights for their warm hospitality and camaraderie in these weeks. I feel very privileged to be in such an inviting and stimulating place, with such interesting and distinguished colleagues. I look forward to working with them in the coming weeks and hopefully, in the future, when I go back to my country. e Ford Foundation and the Centro para la Investigación y Docencia Económicas A.C., (CIDE) provided the means and the institutional support to carry out this research. I am most grateful to them as well as to my research team in Mexico City for their valuable input. Diana Contreras, a colleague and fellow Mexican at the Institute deserves special mention. She has taken me under her wing and guided me through the difficulties of settling into a new environment. Without her help I would have been unable to produce intellectually. My very special thanks to her. I would like to dedicate this lecture to the two most important men in my life: Florencio Acosta Burgunder, my late father, and John Burstein, my husband. My father taught me important intellectual skills that I value highly. His insistence in developing an independent spirit and on keeping my ear to the ground have been precious gifts throughout my career. Many of the themes that I have touched upon are the result of conversations and discussions held with him over the years. My husband has given me intellectual stimulation and unfailing support throughout our long and happy marriage. is lecture represents an attempt to systematize and put together a breadth of experiences and reflections spanning several decades. In the light of the challenges facing my country today, it is but a modest contribution to add to the efforts of many more, who in different walks of life are contributing with their thoughts and their actions to consolidate democratic practices and establish the rule of law in Mexico. I cannot name them one by one. ey have all been important. My gratitude to them all.

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