It is important to understand what the term “forced disappearance” means in the context of international human rights law. A forced disappearance occurs occurs when a person is secretly abducted or imprisoned by a state or political organization or by a third party with the authorization, support, or acquiescence of a state or political organization, followed by a refusal to acknowledge the person’s fate and whereabouts, with the intent of placing the victim outside the protection of the law.[1]
If there has ever been a case of forced disappearance in Mexico then the case of 43 students from Ayotzinapa who were disappeared on the 29th of September of 2014 from the city of Iguala in the state of Guerrero is clearly the one. The involvement of the state government has been clearly demonstrated in this case by a federal government investigation. And even though the Federal Investigation has been widely criticized as inaccurate, incomplete and even farcical by some; what everyone does agree to is that state, municipal and federal police were clearly involved. There is ample evidence the military participated as well. Thus why judges who are presiding over this case have refused to label the occurrences of the 29th of September a forced disappearance goes beyond all logic.
In stead the federal judges, undoubtedly in order to cover the federal governments incompetent and corrupt asses, have labeled this crime a kidnapping even though it has now been proven beyond a shadow of a doubt that federal police were monitoring the students from the moment they left their college in Ayotzinapa all the way to where the event took place in Iguala, a two hour drive north.
The following is from Mexico Voices
Mexico in Crisis: Government Maintains It Is Free of Responsibility for Forced Disappearance of Ayotzinapa Students
Posted: 25 Jan 2015 11:56 AM PST
Article in Spanish can be found here La Jornada: Fernando Camacho Servín
The fact that the Attorney General’s Office (PGR) is not carrying out any prosecution for forced disappearance in the case of the Ayotzinapa students, but is instead prosecuting for kidnapping, murder and organized crime, probably dilutes the State’s likely responsibility in the crime, declared Santiago Aguirre, deputy director of Miguel Agustín Pro Juárez Human Rights Center.
The activist pointed out that the aforementioned reclassification, which was made in December by a district judge and supported in practice by the PGR, demonstrates both the inefficiency of the prosecutors in general and the lack of expertise by the country’s judges for properly classifying the crime they are analyzing. Aguirre recalled:
“From the beginning, the young people’s relatives demanded that the events be framed under the legal concept of forced disappearance, by considering that the participation of state agents permitted it. But the federal government did not recognize it and filed the first indictments for kidnapping.”
In December, the PGR tried to indict for forced disappearance a group of people being held under arraigo [order of 40-day detention without formal criminal charge; court may order additional 40 days]. They had not yet been formally charged with any crime, but the First District Court for federal criminal prosecution seated in Matamoros, Tamaulipas, denied the arrest warrants on the grounds that there was insufficient evidence to prove the charge.
Just Evidence
The judge’s arguments for making the decision, explained Aguirre, are that the initial charges were made for kidnapping but that the characteristics of the detention of the normal school students were not those of forced disappearance. Additionally, the judge considered that “there was evidence” that would permit establishing that the young people were no longer alive and, therefore, had not been disappeared.
MV Note: The Inter-American Convention for Forced Disappearance of Persons defines “forced disappearance” as “the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state, or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.” Article II, Inter-American Convention on Forced Disappearance of Persons.
The definition of forced disappearance in Mexican law attributes the crime to a public servant who keeps the victim hidden “under whatever form of detention”. Unlike the international definitions—under which the crime continues as long as information about the victim is withheld—the Mexican definition appears to limit the crime to the time during which the victim is actually detained. Consequently, under Mexican law, the prosecution would probably have to establish that the “disappeared” person continues to be held in detention…. Mexico: Justice in Jeopardy, Human Rights Watch, July 2003
Thus, as the Mexican government considers the students to be dead, they are no longer “disappeared”.
Aguirre stressed:
“This reasoning is very serious, since it makes clear that the Judiciary is a participant in this lack of knowledge about Mexico’s international obligations regarding forced disappearance. It is a decision that reveals that impunity is not only generated by substandard prosecutorial performance, but also by the substandard performance of judges analyzing human rights violations.”
Although the PGR appealed the court’s decision, it had to file fresh charges against the detainees before expiration of the arraigo’s deadline for holding them. Ultimately, the PGR filed for kidnapping, murder, organized crime and money laundering.
“Four months after the fact, there is not one single criminal prosecution for forced disappearance. The risk of this is not so much that the defendants might go free, because the sentence for kidnapping is even stiffer [than for forced disappearance], but rather that the charge of kidnapping dilutes the responsibility of the State” in the events, which violates Mexico’s international obligations on the subject.
The likelihood is almost zero that the criminal proceedings might be reconsidered and the attack against the youths might be investigated as a forced disappearance, regretted Aguirre, because once it [the criminal event] is configured as kidnapping, it is unlikely that the judge might go against his original reasoning. Spanish original
Mexico in Crisis: Citizen Dilemmas in the Face of the Simulation of Democracy
Posted: 25 Jan 2015 10:20 AM PST
Proceso: Héctor Tajonar*
The rotten fruit of the unfinished and failed transition, the political parties have become one of the main obstacles towards the consolidation of democracy in Mexico. This puts citizens in a dilemma as to whether they should abstain from voting and boycott the elections, as proposed by Javier Sicilia, or be complicit in a simulation that seems to lead to an electoral kakistocracy, i.e. the establishment of the “government of the worst “, backed by elections presumably well organized by the National Electoral Institute.
Political parties are basic instruments for the functioning of representative democracy. However, these institutions often operate as corrupt oligarchies –what Max Weber called patronage parties–whose main aim is to obtain “perks, power and, consequently, honor for their bosses and minions, or all of this at once”.
Corruption, kickbacks, susceptibility to co-optation, demagoguery, parties with hostesses, luxury watches, cynicism, sinecures, coercion and vote buying, campaign expenditure overruns, manipulated polls, infighting over the spoils, family houses, careers of political bossism, or collusion with organized crime, all are elements of the uses and customs related to the leaders of political parties of all names, sizes and “ideologies”. Such common characteristics, in fact, make Mexican party organizations more similar to each other than they may be able to differentiate themselves by their always maleables programs, principles and ideas. Despite the plurality of parties, they form a unity in their simulation of democracy.
To this despicable reality are added the violence, corruption and impunity that lacerate the country and increase social rancor. It is hard to imagine a worse scenario for the aspiration to sustain a waning democratic governance. In the face of this, another dilemma presents itself: to opt for an anti-systemic path, one of rupture from the institutions, in order to refound the country by creating a new Constitutional Congress “in order to then create a National Salvation Committee to become the government in 2018” (Javier Sicilia, Proceso edition 1992); or seek a transformation of the nation within the institutional framework, despite its flaws and limitations.
I agree with Sicilia’s diagnosis. Mexico faces a national emergency, and elections alone do not guarantee a true democracy to serve the general interest. However, using peaceful means, a new Constitutional Congress cannot be created without the involvement of Congress and members of the political parties that comprise it. The only way to draft a new constitution without recourse to the legislature would be through a revolution. Nor could a Committee of National Salvation to rule in 2018 be imposed by peaceful means if it were not the result of a victory in a free and fair voting process, according to the existing laws and institutions. Otherwise, it would not have the democratic legitimacy desirable and necessary for the country’s transformation. In Mexico of the 21st century, the imposition of an anarchist-Christian ideology to replace the existing State with one sustained by a confederation of autonomous groups and based on a collective ethic, as proposed by Sicilia, seems neither feasible nor desirable. Nor can the nation extract itself from modernity and the international context.
However, I think that Javier Sicilia is one of the strongest and authentic moral leaders. His intelligence, humanist vocation, ethical rectitude, courage, critical vision and commitment to the most vulnerable sectors are qualities needed in the task of transforming Mexico. The poet and social activist is an essential personality in order to form a pluralistic citizen group–one composed of intellectuals, academics, artists, members of civil society and politicians with experience and proven honesty–capable of proposing a real alternative for government.
Initially, the civic organization would be a pressure group that would demand that the government achieve the most urgent and profound changes that have been neglected for decades and which have resulted in the transition to democracy being spoiled and that the entire nation is invaded by violence, terror and the corrupting power of organized crime.
The outstanding and urgent reforms are the abatement of corruption and impunity, as well as the creation of a genuine rule of law. It is clear that neither the present administration nor its accomplices in Congress are interested in these, even though they are demanded by a large majority of citizens. Civil society has not been known how to organize itself so that is heard by the government. This is necessary in order to force those in power to obey the popular mandate.
Mexico has talent to spare with the ability to form an honest and effective alternative government. What has been lacking is the will to organize and develop a strategy that represents a real counterweight to the ruling kleptocracy and kakistocracy. This group would have the possibility of becoming a political party or to propose citizen candidates with support from broad sectors of the population and even other parties. The experience of Podemos [We Can] in Spain is an interesting reference that can be improved and adapted to Mexican reality.
The challenge of establishing good government in a country the size and complexity of Mexico calls for strong institutions, as well as trained and experienced people capable of establishing peace, justice and honesty and the design and implementation of public policies that promote economic growth, productivity, combating poverty and inequality, with better education, health and infrastructure. This requires a strong, effective and honest State, qualified to design and implement public policies, efficiently manage the governmental apparatus, control and sanction corruption, establish a high level of transparency and accountability and, paramount of all, enforce the law, i.e., establish a genuine rule of law. Society has the floor.
Proceso only gives subscribers online access to the Spanish original.
*Héctor Tajonar was born in Mexico City and studied politics at the University of Oxford. A political analyst, Tajonar writes a column in Proceso, the weekly magazine. He has been a faculty member at the National Autonomous University of Mexico (UNAM).
Posted: 25 Jan 2015 08:24 AM PST
In Search of Justice, Parents of 43 Disappeared Students to Go to Geneva
Text Reads: (Left) “The same story” and (Right) “A mother’s pain has a face”
Photo: Sanjuana Martínez
La Jornada: Sanjuana Martínez, Special Correspondent
In the context of the assessment of Mexico before the UN Committee Against Forced Disappearances, parents of the disappeared Ayotzinapa students will go to Geneva to present a report denouncing the lack of justice in the country in the face of what they call a State crime. They also demand investigation of the Mexican Army and other implicated people.
Tomorrow marks four months without true access to justice, so the parents of the 43 students from the Raúl Isidro Burgos Rural Normal School [teachers college] have begun to seek justice before international bodies. Next week a committee will travel to Geneva to participate in the February 1-2 meeting at the United Nations that will review [the issue of] forced disappearance, during the examination that is to be conducted of the Mexican State in its eighth session.
In an interview, Felipe de la Cruz, spokesperson for the students’ parents, said:
“We are going to Geneva to seek justice. We are going to search everywhere in the world that this crime of the State not go unpunished. We will knock on all necessary doors, because we know that the Mexican authorities protect each other and here [in Mexico] there are many interests.”
The report, which was delivered to La Jornada, was prepared by victims’ representatives: Tlachinollan Center for Human Rights, José María Morelos y Pavón Regional Center for the Defense of Human Rights AC, Guerrero Network of Civilian Human Rights Agencies and Miguel Agustín Pro Juárez Human Rights Center (PRODH Center).
The 22-page document contains a damning report of what happened September 26-27, 2014, in Iguala, Guerrero. It demonstrates the inability of the Guerrero state government and the delayed reaction of the federal government and the Attorney General’s Office (PGR), which began working on the case eight days after the incident. The document states:
“Later still, 11 days after the disappearance of the 43 young people, President Enrique Peña Nieto spoke for the first time on the case.”
The document recalls that the Executive received the students’ parents 34 days after the events.
Government Indifference
The report chronicles the doubts and mistrust regarding the PGR’s hypothesis about the students’ disappearance:
“Today, the investigations continue, and they cannot be concluded. The Ayotzinapa case is far from being resolved.”
The human rights organizations, representatives of the parents, point out that the PGR has failed to arrest all the people who, according to its theory, participated in the events. Of the alleged 15 masterminds, only three have been arrested. Still at large three months after the events are Felipe Flores, head of Iguala Public Security, and his deputy, Francisco Salgado Valladares. Nor have powerful leaders in the Warriors United [Guerreros Unidos] criminal organization been arrested; namely, the local boss, known as El Gil—whom the PGR itself identified as a key player in the events—, and his boss, Ángel Casarrubias Salgado.
The report states that in the Ayotzinapa case “the truth has not been cleared up,” particularly because it cannot arise only from testimony and because it lacks investigation of fundamental events, like the terrible murder of Julio César Mondragón, who was found flayed in the vicinity of Iguala:
“Responsibility for this crime, essential for knowing the truth, has not been established.”
Most importantly, they say, four months after the fact,
“the Mexican government has been unable to file charges and initiate legal proceedings for the forced disappearance of the students.”
One part of the report is devoted to the independent forensics, which have found “inconsistencies” in the PGR’s version regarding the supposed discovery of the remains of the 43 in the Cocula garbage dump. Thus, the report considers that other hypotheses should be taken into account, including those raised by scientists from the UNAM [National Autonomous University of Mexico] and UAM [Metropolitan Autonomous University], which have taken apart the official version:
“They have gone on to other issues about the scientific feasibility that 43 disappeared young people might have been incinerated, as the Mexican State asserts.”
The report points out the lack of action by the PGR for investigating the connection between organized crime and political authorities, it hasn’t even begun:
“It is naive to think that the collusion between organized crime and the public sector stops with the mayor of Iguala and his family. The narco-municipal governments can only exist with the acquiescence and complicity that go beyond the municipality. Therefore, it is essential to require that Guerrero’s former governor (Ángel Aguirre) and other state officials in the Executive, Legislative and Judicial branches be investigated. The same [investigation] should be required of the Army.”
Contrary to the refusal by the Secretary of Government Relations, Miguel Ángel Osorio Chong, to investigate the Army in the Ayotzinapa case, the report presents the urgent necessity of opening and developing this line of investigation:
“As the only federal authority territorially in place in Iguala, without a doubt, the Armed Forces relied on intelligence about links between authorities of the Mexican State and drug-trafficking groups. Today it is verified that the Armed Forces knew of previous events, such that they were aware of the breakdown of the municipality [government structure] and that they gave warning of the systematic use of ‘disappearance’ in this locality.”
The report gives an account of the failure of the so-called Victim Care Plan in this case because, first, the crime is not correctly classified:
“the case must be recognized more fully as one of the massive forced disappearance of young people, not just in their approach but also in their legal actions and public statements, owing to the fact that the federal government has insistently referred to the case as one of ‘persons not located’.”
The report exposes the crisis that exists in Mexico regarding this crime:
“The Ayotzinapa case has come to demonstrate the consequences of years of impunity, inaction and indifference in the face of forced disappearance in Mexico. From different perspectives, the event has been designated as a watershed in recent history and as a turning point regarding the crisis of disappearances that the country is going through.”
Moreover, according to the report, the Ayotzinapa case demonstrates the lack of “governmental will and conviction” to address, prevent and punish the crime under international law:
“The Ayotzinapa case conclusively confirms that the legal framework is insufficient and that the authorities completely ignore the Convention for the Protection of All Persons from Forced Disappearance. After the forced disappearance of the 43 students, no one faces criminal prosecution for that crime; further, no Mexican authority has used or invoked the Convention in legal decisions related to the prosecution and judgment of this crime.”
Considered to be the “most serious case of forced disappearance in the nation’s history,” they say, the event was not properly dealt with in the first, crucial hours:
“In the case, despite the fact that beginning the night of September 26 there was evidence of forced disappearance of 43 young students, [yet] the initial investigations were not [focused] on the disappearances, but on the homicides; in fact, in the absence of a diligent investigation into the disappearances, the families filed complaints such that the respective files might be opened. The Ayotzinapa case also shows that searches for their safe return were not begun immediately.”
The report states that in order to investigate the students’ whereabouts, the participation of Specialized Unit for the Search of Disappeared Persons, the Executive Committee for Victims’ Care (CEAV) and the General Department of Strategies for Dealing with Human Rights in the Secretariat of Government Relations [SEGOB],
“did not make, nor have they [subsequently] made, any significant intervention in the case; quite to the contrary, their official communications [regarding] the situation of forced disappearance have been fuzzy.”
The report shows the “simulation” of the Mexican government in creating institutions that do not really deal with cases of serious human rights violations, and it severely criticizes actions of the National Human Rights Commission (CNDH):
“The Ayotzinapa case also shows that nothing has been served by the reforms that empowered the Commission to conduct special investigations.”
In conclusion, the report shows, among other things, the
“inadequacy of the legal framework; lack of clarity about issues of authority and jurisdiction in respect to forced disappearance; absence of mechanisms for immediate search for live persons; limitations of the PGR’s Search Unit; absence of systematic CNDH involvement; failures of the National Registry of Missing or Disappeared Persons and the failure of transitional justice.”
MV Note: Transitional justice is an approach to systematic or massive violations of human rights that both provides (1) redress to victims and (2) creates or enhances opportunities for the transformation of the political systems, conflicts, and other conditions that may have been at the root of the abuses. … To achieve these two ends, transitional justice measures often combine elements of criminal, restorative, and social justice.
If the government of Enrique Peña Nieto seeks legally and politically to blur the crime of forced disappearance in the Ayotzinapa case, as they maintain, this report aims to prevent it:
“The disappearance of 43 young students means a deep wound for Mexican society, which heralds worst atrocities if it does not succeed in serving as a genuine game changer with respect to the government and social indifference in the face of forced disappearance. In this sense, it is essential that the committee make a strong statement in order to condemn the forced disappearance of 43 students and to demand justice, truth and reparations in this landmark case.”
Spanish original
Ayotzinapa Students Case: Omissions And Loopholes With Lack of Charges of Forced Disappearance
Posted: 25 Jan 2015 11:08 AM PST
La Jornada: Editorial
Translated by: Laura Turner
Nearly four months since the aggressions committed against students of the Ayotzinapa Normal School, Vidulfo Rosales, legal representative to the relatives of the missing students, indicated that the Attorney General’s investigation presents a number of weaknesses and inconsistencies on a variety of levels. First, he pointed to the federal government’s insistence that the 43 missing students were killed and incinerated—this being in spite of the fact that there is no conclusive scientific evidence supporting this hypothesis.
Another serious flaw in the investigation is that none of those who have been placed under arrest face forced disappearance charges. They all face murder and kidnapping charges.
MV Note: See also Need to Expand Indictments in Case of Disappeared Ayotzinapa Students
This final point requires us to reflect upon the fact that the Mexican State has historically ignored the topic of forced disappearance, starting with their conceptualization of crimes that fall under this category in the legal framework. It should be pointed out that to date, forced disappearance is not necessarily considered a crime in all the states of the Republic, and under the Federal Penal Code, its definition is not only vague, but it does not align with both international law and treaties on the subject—although all have been signed by Mexico. Thus, the country seems to have reduced their commitment to the defense of human rights to the symbolic signing of treaties that do not translate into legislative acts, and are reflected even less in the facts.
MV Note: The Inter-American Convention for Forced Disappearance of Persons defines “forced disappearance” as “the act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state, or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by an absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.” Article II, Inter-American Convention on Forced Disappearance of Persons.
The definition of forced disappearance in Mexican law attributes the crime to a public servant who keeps the victim hidden “under whatever form of detention”. Unlike the international definitions—under which the crime continues as long as information about the victim is withheld—the Mexican definition appears to limit the crime to the time during which the victim is actually detained. Consequently, under Mexican law, the prosecution would probably have to establish that the “disappeared” person continues to be held in detention…. Mexico: Justice in Jeopardy, Human Rights Watch, July 2003
Thus, as the Mexican government considers the students to be dead, they are no longer “disappeared”.
This omission in the legal framework is particularly serious in Mexico, whose history has been marked, at least in the last half century—above all during periods like the dirty war [against various urban and rural rebel groups in the 1970’s], the Zedillo counterinsurgency [against the Zapatistas in 1990’s], and more recently, the war against drugs—by the systematic practice of forced disappearance and violations of human rights by public institutions.
To make matters worse, the authorities have handled official information regarding the matter in an unclear and irresponsible way: there is no reliable record of forced disappearance victims; the figures fluctuate chaotically and there is a no protocol for institutional action in reference to this crime.
In the case of Ayotzinapa, an official reluctance to press charges for forced disappearance is even more serious: first, because we are not talking about ordinary kidnapping. Second, cases of forced disappearance remain active as long as the disappeared continue to be missing. Thus, by giving the impression that this does not constitute a case of forced disappearance, the Government is seeking to evade its responsibility to keep looking for the students.
MV Note: The government has announced that all Lines of Investigation for Disappeared Ayotzinapa Students Have Been Exhausted.
Taking into account the above omissions and loopholes, it is both natural and inevitable that the Attorney General’s investigation regarding the disappearance of the Ayotzinapa students lacks credibility among the relatives of the victims, as well as among large segments of society and international public opinion.
In addition to the obvious need to prosecute and punish the abuses committed by agents of the State, it is imperative that the authorities should include the crime of forced disappearance in both the investigation and the corresponding criminal cases—and in turn, correct the existing gaps in legislation. Spanish original
See also:
Government Lacks Evidence that Mayor or Wife Ordered Ayotzinapa Student Executions;
Attorney General Has Weak Case Against Police and Others Arrested for Murders, Disappearances of Ayotzinapa Students.