The Situation
• The Case
In one case, the sister of a victim of enforced disappearance gathered enough information through the GPS tracking technology to pin point the locations from which she received extortion calls; asking her to make money transfers in order to keep her brother fed. When GPS evidence was presented in court, by a ‘forensic expert’, the judge dismissed it as “numbers I cannot understand, I am a lawyer”. On the other hand, the money transfer slips that she kept were tracked and led to a man who claimed to work for an “unknown individual” and that he did not know what the payments were made for. Hence, the man could not be charged with extortion or kidnapping, because, in the judge’s eye, he had not asked for the money and did not know its origin. In the same case, the judge eventually dismissed the case on the grounds of lack of jurisdiction since the kidnapping/abduction/disappearance took place in the state of Coahuila.
However the extortion calls were made from Queretaro, the state were the legal proceedings were being carried out. Finally, this woman engaged in activism with a victims’ movement and was able to have the Federal Government attract her case on political grounds. Our informant had also gone undercover and met some “alleged” members of organized crime at the lower levels of the organization. She was even able to photograph, with her mobile phone, the book that had registered the detention of his brother by state authorities in Coahuila. Yet, once the information was revealed in the investigation process, both lay and judicial investigations, the book was forged to leave the evidence out. To date, she has spent 4 years looking for his brother and the involvement of the Federal Government has been of little help. The last interview held with GFC in the context of a sit-in in Mexico City was interrupted by a phone call from the Office of the General Attorney. She answered the phone and clarified “…of course you gathered samples of DNA from me, my brother, my son and my father two years ago…don’t tell me you lost them…”
The case of our informant summarizes the difficulties arising from the legal definition of enforced disappearance in Mexico and the absence of legislation on the matter at the local level. However, it also highlights the absence of mechanisms (practices and capacities) to investigate claims of disappearance with due diligence. For instance, efforts by the Office of the Attorney Generals to secure new DNA samples point to problems in the chain of custody and preservation of evidence. However, this is just the tip of the iceberg as new DNA samples would be futile to identify any human remains since, as stated by the Attorney General, “…to date, there is no national DNA database to make cross-references between unidentified human remains and those seeking their family members.”
• Generalized Violence and Human Rights Abuses: Who is Responsible?
In a context of generalized drug related violence, the Human Rights situation in Mexico has become particularly complex. The Mexican government has received recommendations to improve its Human Rights’ practices in reports by international organizations and transnational NGOs. Issues such as enforced disappearances, arbitrary detentions, migrants’ rights and attacks against reporters (cite CIMA report) have raised important questions about the willingness and capacity of the state to secure basic rights such as the freedom from arbitrary detention, the rights to life, liberty and freedom of speech. To date, however, the violent situation in the Mexican territory makes it difficult to distinguish among those human rights abuses committed by state authorities and private criminal groups it is the case too, that adjudication of responsibility and the distinction between regular crime and violations of human rights by state authorities has been blurred.
Several reports by international agencies and NGOs point out to the fact that human rights violations are perpetrated either with the acquiescence or cooperation of state authorities. While on the other hand, some of the most serious claims of abuses and threats to life by organized crime are met with neglect by the same state authorities in charge of preventing and prosecuting them. In such circumstances victims are faced with the difficult task of seeking justice in a system that might target them (due to links between criminals and justice system operators) or with the task of engaging in investigative practices that threaten their life and wellbeing. Accordingly, victims-citizens are faced with the task of seeking justice in the absence of political will and state capacity to do so; the Mexican state is overlooking its obligation, under international law, to proceed with due diligence in the investigation of serious crimes. It is a well-established principle of international law that States have the responsibility to respect, protect and promote human rights, and such responsibility exists not only when the State directly commits human rights violations, but also when the State fails to protect those under its jurisdiction from such violations. Such is the case in Mexico and of particular concern are cases of missing persons and enforced disappearances.
• Missing Persons and Enforced Disappearances in a Context of Extreme Violence.
On February 2013, Human Rights Watch (HRW) launched a report faulting the Mexican government for, at least, 249 documented cases of enforced disappearances involving state authorities and security forces. However, the 249 documented cases linger in the face of official reports, by Mexican authorities, that estimate there are between 25,000 and 27,000 missing persons since the beginning of the “war on drugs”, back in 2006. Yet, earlier this year the Mexican Interior Minister stated that authorities are faced with “a fundamental fact: few records, little proof, no protocol to deal with this.”
The institutional and legal grid that underscores the inability of Mexican institutions to deal with the problem of the missing and disappeared persons in the context of extreme violence is complex and multi-dimensional. However, lack of legal definitions and appropriate investigative practices and behavior are at the core of this complex problem. At the level of legal definitions, accusations of enforced disappearances in Mexico require that these be made with direct reference to the state actors involved in such crime. Yet, the very nature of the crime provides very few instances where those left behind (family members or other witnesses) can confidently assert that State agents were involved in the crime and who these agents might be. On the institutional side, the Mexican Federal System codifies the crime of Enforced Disappearance in the Federal Code of Criminal Procedures (CFPP by its Spanish acronym). Such codification means that disappearances will only be investigated and prosecuted under federal jurisdiction. To date, only two of the 32 states in Mexico have developed local legal frameworks to chart this crime. This situation, renders the investigation and prosecution of this crime a highly ineffective process. Gobernanza Forense Ciudadana (GFC) has documented several cases in which reports of disappearances were discarded by prosecutors on the grounds that there was no ‘apparent’ involvement of state actors and that claims of disappearance could not be made under local legislation.
Hence, most reports of disappearances are treated as simple cases of ‘missing persons’ where no immediate search mechanisms are practiced; in fact, most cases have to wait a period of 72 hours to finally receive standard attention whereby a “missing brochure is issued and distributed.” However, such measures are an attack against all notions of practical reasoning and moral judgment. In light of the extreme violence that pervades Mexican territory it is imperative that authorities recognize that the obligation to protect its citizens demands that all measures be taken to ascertain the whereabouts of missing persons regardless of incomplete evidence about the reasons by which they have gone missing. It is possible to posit that in the light of extreme violence a missing person in Mexico might, very likely, face considerable danger to his/her life and physical integrity and may as well be subjected to inhumane and degrading treatment in a situation where all legal protections are nil.