MILITARY JURISDICTION OVER HUMAN RIGHTS CASES

C O N F I D E N T I A L SECTION 01 OF 02 MEXICO 001544 SENSITIVE SIPDIS MEXICO PASS TO ODC E.O. 12958: DECL: 06/01/2019 TAGS: PGOV PREL PHUM SNAR KCRM MX SUBJECT: MILITARY JURISDICTION OVER HUMAN RIGHTS CASES UNDER FIRE Classified By: Political Counselor Charles Barclay. Reason: 1.4 (b),(d) . ¶1. (SBU) Summary. Concerned over the rise in human rights complaints against Mexico's military, a group of non-governmental organizations have appealed to Mexico's legal system as well as to international courts to secure the transfer of human rights cases involving military personnel from military jurisdiction to civilian courts. To this end, Mexico's Supreme Court agreed to accept a case that requires it to address the contradictions present in Mexican legislation. Separately, the Inter-American Court is reviewing two cases that revolve around the same issue. A Human Rights Watch report came out in April severely criticizing the current system for "failing to hold members of the military who commit human rights violations accountable" and Mexico's human rights NGO community largely echoes this same theme. Prior reports by the UN and Inter-American human rights bodies have strongly criticized the administration of justice by the Mexican military in human rights cases. Nevertheless, Mexico's military has signaled a clear disinclination to cede its jurisdiction over such cases to civilian courts. End Summary. ¶2. (U) Since 2006, the GOM has deployed forty)five thousand soldiers along the U.S. border and throughout Mexico and assigned retired army officers to take command of local police forces in order to combat organized crime and drug trafficking. The Mexican public generally welcomes the military's presence on the streets of at least 10 Mexican states. However, in the face of growing complaints against the military for allegedly committing human rights abuses while carrying out security functions, Mexico's human rights community has become increasingly critical of the military's role in efforts to fight crime, including its judicial lead in dealing with cases involving abuses. An April 28 Human Rights Watch Report entitled "Uniform Impunity: Mexico's Misuse of Military Justice to Prosecute Abuses in Counternarcotics and Public Security Operations" details 17 cases of human rights abuses committed by military personnel and pointedly notes not "one of the military investigations into these crimes led to a conviction for even a single soldier on human rights violations." ¶3. (U) Mexico's military is insistent that any crime committed by Mexican military personnel )- even against a civilian -- while on duty legally affects the interests of the military order and by definition falls within the military's jurisdiction. Legal experts point out a conflict between article 13 of the Mexican Constitution and article 57 of Mexico's Military Code of Justice. The Constitution establishes that soldiers should be tried in military courts for "crimes and faults against military discipline." The military code affirms that the military should have jurisdiction over any crime committed while an officer is on "active duty" regardless of the nature of the crime. Human Rights Watch, however, maintains a 2005 Supreme Court ruling that defined "service" as "performing the inherent activities of the position that (he or she) is carrying out" should have limited the scope of what should be considered "active duty." Since no one could assert that rape and torture are "inherent activities" of the military, Human Rights Watch made the argument that this ruling should have required cases involving such abuses be turned over to the civilian authorities. ¶4. (U) Last year, Mexico's National Human Rights Commission (CNDH) issued ten recommendations against SEDENA for human rights violations. One of those recommendations was in connection with the death of 4 civilians at a checkpoint in Santiago de Caballeros, Sinaloa. The case is under review in the military court and five officers have been detained. Based on an argument that military justice is not transparent, impartial nor independent, the human rights NGO Centro Prodh, which is representing the family of one the victims, filed an appeal with the Supreme Court (SJCN) requesting it delineate the limits of military jurisdiction for cases involving human rights abuses perpetrated by military personnel against civilians in accordance with the Mexican Constitution and international standards. This case could potentially afford Mexico's Supreme Court an opportunity to lend greater clarity on this question of MEXICO 00001544 002 OF 002 jurisdiction in cases of military abuses affecting civilians. ¶5. (C) Of course, while Mexico's Supreme Court agreed to review this case, there is no way of knowing when it will deliver its ruling or what that ruling will be. Centro Prodh would like to see the SJCN recognize the contradiction within Mexican law on this matter and rule that the executive and legislative branches need to reform the legislation. However, the prospects so far are not very encouraging. First, Centro Prodh notes that the NGOs and the Congressmen who introduced legislation to treat this issue have not been able to engage the military in dialogue. Second, the Director of SEDENA's Human Rights Office, Gen. Jaime Antonio Lopez Portillo, asserted in a public interview that no reforms of the military code are under consideration and that the Inter-American Commission has not proven that military jurisdiction in Mexico contributes to impunity. Third, Monte Alejando Rubido, the Technical Secretary of Public Security Council, recently signaled to PolCouns that shifting jurisdiction in such cases from the military to the civilian courts is not/not a priority for the government. ¶6. (U) In the meantime, some international organizations have recently expressed their opinion on the subject. -- First, a recommendation emerged from the UN's Universal Periodic Exam this past March that military courts should not be used to investigate and prosecute crimes committed by soldiers against civilians. --Later in March, after a hearing with Centro Prodh in D.C., the Inter-American Commission of Human Rights (IACHR) issued a press release that signaled its view that military courts should not have jurisdiction in cases of human rights violations. --Also, last year, the Inter-American Court accepted the case of Rosendo Radilla, a community leader who disappeared after being detained at a military checkpoint in 1974. Radilla's family brought its case to the court on grounds the GOM did not grant it the right to appeal against a decision that had required its lawsuit against a general be heard in a military court. The Interamerican Court has not yet released its final decision on this case --On May 7, the IACHR sent the Inter)American Court the case of Ines Fernandez Ortega, who was allegedly tortured and raped by members of the Mexican Army in 2002. The military prosecutor dismissed the case for lack of evidence. However, the Commission's decision to send the case to the Court is based on its assessment that military courts lack proper jurisprudence over cases of human rights violations perpetrated against civilians. ¶7. (SBU) CNDH has issued many recommendations calling for investigations of alleged abuses by military personnel. However, it has incurred significant criticism from the NGO community for not calling for the categorical transfer of military jurisdiction for all cases involving military officials implicated in human rights abuses to civilian courts. The NGO community has further accused CNDH of being subservient to and intimidated by the Mexican military. Nevertheless, CNDH recently urged President Calderon to develop a plan for transitioning the military out of its involvement in public security activities. ¶8. (SBU) Comment: We understand Mexico plans to reject in June a recommendation coming out of the UN's Periodic Review of Mexico this past March that military courts should not hear cases of abuses committed by military personnel against civilians. Mexican military officials have also made it clear that they are not keen on making this transition. In the past, several UN and Inter-American reports have severely criticized the military's administration of justice with a 2006 IACHR report going so far as to describe the military prosecutor's investigation of human rights abuses perpetrated by Mexican military personnel as a "violation of the American Convention." Pending rulings by the Mexican Supreme Court and the Inter-American Court, however, could put the military under greater pressure to transfer such cases to civilian courts. Visit Mexico City's Classified Web Site at http://www.state.sgov.gov/p/wha/mexicocity and the North American Partnership Blog at http://www.intelink.gov/communities/state/nap / BASSETT