Mexican Senate advances military justice reforms

By Chris Covert
Rantburg.com

Human rights groups Thursday lauded the efforts of the Mexican senate in advancing reforms in military justice, to include moving two crimes from the category of crimes -- known as Article 57 of the Mexican Code of Military Justice -- that can only be prosecuted by military prosecutors, to crimes that can only be prosecuted by local civilian prosecutors, even if the suspects are members of Mexico's armed services.

Mexican news reports say Partido Accion Nacional (PAN) senate leader Alejandro Gonzalez Alcocer said that the reforms are expected to be debated next week.

Alejandro Gonzalez Alcocer

From previous news reports is it difficult to gage how far along the reforms have moved.  Mexican president Felipe Calderon Hinojosa has suggested making the changes last fall but in context of advancing a far more important reform, national security.  Two oft the crimes to be excised from Article 57 are rape and forced disappearances.

As a practical matter, Mexican military personnel can be -- but usually are not -- charged in civilian courts for crimes committed against civilians in the course of counternarcotics and counterinsurgency operations.  If a crime victim, or the family of a crime victim goes to a local prosecutor and asks the incident be investigated, usually the prosecutor will investigate the crime up  to a point.  However at some point it is has been de riguer since at least the 1990s, for local and state prosecutors and courts to declare their lack of competence in prosecuting such cases in favor of military prosecutors.

The declaration has the same effect of kicking a case out of one level and into a different one, even a higher level such as state and federal courts.

Having military prosecutors investigate and prosecute crimes committed by soldiers against civilians make sense.  The prosecutor has access to documents and witnesses that a prosecuting lawyer normally does not have, and understands the military where a local prosecutor may not.  In the Drug War military prosecutors are far less likely to be in thrall to criminal groups and to their infiltration.  Although, technically, military prosecutors are as susceptible to corruption as their civilian counterparts, military prosecutors are held to higher standards and are often subject to command review.

Unlike civilian prosecutors, reforms implemented during the Vicente Fox administration and afterwards has placed a much high emphasis on human rights.  Secretaria de Defense Nacional (SEDENA), the controlling agency for the Mexican Army, now has a human rights office whose sole existence is to look into human right violations.

Human rights groups such as Human Rights Watch have routinely charged for years, absurdly, that military prosecutors do not prosecute military personnel for crimes, the implication being that only civilian prosecutors can make a case against a soldier.  A deeper implication is that Mexican soldiers are monsters who are not held accountable for crimes committed against civilians.

Evidence provided the SEDENA and Secretaria de Gobiernacion (SEGOB) or Interior Ministry shows a different story, however.

Last week, Human Rights Watch issued a news release haranguing the government of Mexico about its slow progress in dealing with human right cases.

The news release purporting to use statics provided by the  Procuraduria General de Justicia Militar or Attorney General for Military Justice shows that of 3,000 human rights cases filed between January 2007 and July 2011, only 29 military personnel have been convicted for crimes against civilians.  Since July, 2011, the military has claimed that of those 3,000 cases, two percent were found sustainable, the remaining 98 percent called "jokes" by one unidentified senior field commander.

SEGOB Alejandro Poire released information in November 2011, which clarified the military's involvement in policing its ranks.

Alejandro Poire

In 6,000 operations, presumably to include minor activities such as road patrols, SEDENA claims the National Human Right Commission has received 6,065 human rights complaints of which 98, or 1.61 percent were found to be sustainable as a prosecution.

Similarly, the Mexican Navy has received 800 complaints, of which 17 were sustainable as prosecutions.  Poire said in his presentation that less than one percent,or 0.85 percent of the remaining cases, it was found that someone's rights had been violated by the Mexican military. The subtext in Poire's presentation, and one human rights groups refuse to acknowledge, is that Mexican military personnel are subject to -- and are being investigated -- investigation and prosecution when the case is found have a basis and is sustainable.

It is unclear in the serial news releases by Human Rights Watch if their skewing of statistics dealing with human rights violations are honest mistakes or blatant attempts to "cook the books" in favor of their agenda.  Human rights organization in additional to advancing their agenda appear also to have mischaracterized a Mexican Suprema Corte de Justicia dela Nacion (SCJN) ruling last year which essentially ordered lower courts to take up human rights cases involving the military, instead of allowing the military to police its own.

However,since that ruling, members of the SCJN have been engaged in discussions attempting to square July's ruling which suborindates Mexican sovereignty to international treaties it has subscribed to, even, apparently retroactively.

An article published in March in El Diario de Coahuila news daily gives a slight glimpse into issues the court is debating to resolve.  The attempt to reconcile the issues of sovereignty and international treaty obligations, has created two opposing camps, one represented by Justice Arturo Zaldivar, who said the Mexican constitution and Mexico's obligations under international treaty should be interpreted harmoniously.

The other camp, represented by Justice Olga Sanchez Cordero wants to deal with apparent contradictions by granting the highest level of  human rights protection on a case by case basis, without dealing with contradictions or dealing with the degradation to Mexican sovereignty.

The ruling said that cases involving human rights even if such violations are not codified under Mexican law must be investigated as a criminal act, and only by Mexican civilian prosecutors.  In practice, critics such as the military and some Mexican legal experts warned at the time, the ruling places 1,200 forced disappearances cases onto civilian prosecutor's desks and places untold, possibly thousands of Mexican prior-service military in potential legal jeopardy.  And that is just the cases filed between 1968 and 1982, nearly half of them in one state, Guerrero.  Guerrero, the poorest state in Mexico will be likely to resolve but a few of those cases, and those cases under the ruling will stretch prosecutors' budgets thin.

When the concurrent cases of disappeared in Mexico are added, anywhere between 2,000 and 5,000 cases, if it difficult to see how many of them will be resolved at least to the satisfaction of perfunctory groups such as Human Rights Watch.

Assuming military justice reforms are passed and signed into law, the crimes of rape and forced disappearances will be two that will be the exclusive purview of civilian courts if the victim is civilian.  It was promised last fall by President Calderon as a means of advancing another far more sweeping law, the Ley de Seguridad Nacional.

The Ley de Seguiridad Nacional is a proposal which has languished at various stages in the Mexican legislative process since 2009, and gives Mexican field commanders wide latitude in dealing with organized crime, especially in counternarcotics operations. Among the proposals are permitting field commanders to cancel public events, to cut electrical power to an area and to allow the Mexican military to monitor social media such as Twitter and Facebook, as well as others.

But the biggest obstacle to the Ley de Seguridad Nacional is the proviso that allows a Mexican president to declare a state of emergency and apply it to a specific location, such as a state, without first consulting with his cabinet, the Chamber of Deputies, or the Senate, consulting only with his commanders.

A law that permits a nationwide state of emergency exists in Mexico, but the chief executive has a number of hurdles to pass before the state of emergency can be imposed.

For real life and personal reasons, elements of the Mexican left has vehemently opposed the new law.  Many of them suffered under a series of Partido Revolucionario Institucional (PRI) presidents, when those executives unleashed the power of their military against hostile and sometimes armed opposition groups.

But aside from the personal reasons, placing such power in the hands of a single group, the president and his military -- already under Mexican law a close-knit group -- doesn't sounds like very sound public policy., but for Mexican organized crime.

The Ley de Seguridad Nacional law had been advancing last year at a brisk pace, passing a court test in May, 2011 and then, suddenly with the advent of Javier Sicilia and his peace group, had insufficient life to survive beyond the last regular session of the Mexican senate.  Despite promises made last August by the PRI Chamber of Deputies leader Jorge Carlos Ramirez Marin to pass the law in the wake of the Monterrey gaming establishment arson, the law has been tabled. Despite Calderon's best efforts to advance changes in the Mexican Code of Military Justice Article 57, no movement has been made to advance the much more sweeping law on national security.

The problem for NGOs such as Human Rights Watch was the informal announcement made by SCJN chief justice Juan Silva Meza the very next day ,when he walked the ruling back from its original intent, saying the federal court judges will have the widest latitude in deciding whether human rights cases will proceed, or if those cases will be thrown out.

Juan Meza Silva

Human rights groups want to conflate their standards of human rights violations, standards so law as to be non-existent, and up to a point the Mexican legal and political establishment has gone along.  But when cases of human rights violations by Mexican military against civilian reaches a much more rigorous and less politically charged level,  the federal level, human rights groups may well see their agenda fall apart in the face of the reality of national security.

Chris Covert writes Mexican Drug War and national political news for Rantburg.com