|Senadora Gonzalez Gomez|
Almost two and a half years after the July 2011 decision by the Mexican Suprema Cort de Justicia de la Nacion (SCJN) that international treaty obligation concerning human rights can take precedence over Mexican law, talks and committee meetings between military and senators continue that could lead to laws that balance Mexican law with international law, according to Mexican press accounts.
A news report which appeared in the online edition of Milenio news daily said that several military staff admitted that the nature of fighting against narcotraffickers has let to some human right violations, and have been "inevitable".
The lead in the senate to deal with military justice reform is Partido Revolucionario Institucional (PRI) senator Arely Gomez Gonzalez, who has been holding hearings on this as well as other legal reforms since last fall. But these meetings were not the first. A quick meeting just after the 2011 SCJN decision was held between senators and the military.
Last September, according to a news account which appeared in El Mexicano news daily, the senator declared that five meeting between senators and Mexico's senior military staff would take place to discuss "the balance between the protection of human rights and military discipline, with all the practical consequences that this entails..."
In Friday's meeting military staff from the Secretaria de Defensa Nacional (SEDENA), the controlling agency for the Mexican Army and Secretaria de Marina (SEMAR) have both admitted that human rights violations, while rare have occurred in the past.
Contradmirante Alejandro Vazquez Hernandez, director of the Justicia Naval de la Unidad Juridica told senators Friday, "We were asked to clean house, and now we are told we only dusted. It is clear in some instances there have been human rights violations, but it is inevitable because of the fighting."
The Admiral was referring to the 2011 SCJN ruling that conflated international human rights treaty obligations with Mexican law, a ruling which has gained severe criticism -- as well as acquiescence -- from military staff as well as field commanders. That ruling said that anytime a civilian killed, though not involved in an exchange of gunfire, as an example, that case must be turned over the local civilian authorities to assess culpability and that military prosecutor must declare their lack of competence in proceeding with a case.
At the time it was feared that the ruling would flood civilian courts with human rights cases directed against the military, but according to a Mexican Army staffer, the results have been different than feared.
According to military prosecutor Jesus Gabriel Lopez Benitez, a large number of cases have been declined even when kicked upstairs to the national attorney general, 434 in total.
A total of 434 preliminary investigations were moved to the Procuraduria General de la Republica (PGR) or national attorney general, which resulted in 271 arrest warrants. Of those arrest warrants, 174 of them were for military personnel, including commanders as well as enlisted personnel, the rest civilians.
That has occurred because military prosecutors -- of which the Mexican Army maintains 108 separate offices -- now routinely decline prosecution for offenses against civilians in favor of civilian prosecutors. He said that the current system bypasses normal military discipline "as necessary, so indispensable in the Army, Navy and Air Force."
"We are most jealous guardians of military discipline and behaviors that do not allow violations [which would] cast doubt on the good image of the institution", said Lopez Benitez.
Another problem for Mexico's military has taken place where, when a civilian prosecutor has been called to investigate the case of a civilian death from a military mission, for example, the circumstances has changed because now soldiers and everyone involved in an incident must deal with a separate element which was not involved in the original incident.
The situation has created uncertainty in the ranks of prosecutors because now they do not know if they have the "legal certainty", as General Alejandro Ramos Flores, head of the Asesoria Juridica del Estado Mayor de la Defensa Nacional said, to properly perform their jobs.
The 2011 SCJN ruling came from years of haranguing by human rights groups who stated repeatedly that military units cannot investigate their own if a crime has taken place involving military personnel. Another more subtle charge by human rights groups, absurd on its face, is that because a military is involved with killing, it must be incapable of seeking justice for victims.
The base that was brought before SCJN was of Radilla Pacheco a radical peasant organizer who was detained by the Mexican Army in Guerrero state in 1974, and never heard from again. That detention and subsequent disappearance took place in the depth of Mexico's Guerra Sucio or Dirty War, when a succession of Mexican presidents beginning in 1967, used their military to harshly crush political dissent as well as against armed revolutionary elements.
During that time, according to statistics, about 1,200 disappeared, presumably all at the hands of Mexican security forces.
Just after the 2011 ruling Calderon has advanced changes to the Codigo de Justicia Militar (CDM), specifically to Article 57 which would remove forced disappearances, rape and torture among the offense that can be prosecuted under that code by military prosecutors.
To date no element of that specific proposal has been advanced, however last fall proposals were advanced to make changes to the CDM. According to an archived news account in Milenio last fall, senator Gomez Gonzalez has overseen discussions on some changes including establishing a separate court system including military judges and expanding the range of offenses. The report failed to detail which offenses would be included with those that can be prosecuted by the military.
The 2011 court ruling also placed it in direct conflict with another part of the Mexican Constitution Article 13, which states that a Mexican citizen can be charged with one crime in more than one jurisdiction. Article 13 prevents a legal condition of having an accused to defend against the same act more than once.
A government draft report released at the time said that military prosecutions do fulfill the requirements of international treaties, despite political charges that it can never do that.
A Mexican naval captain, Mario Augusto Chichitz Diaz Leal, suggested a change in Article 57 which would allow the military top punish its own personnel a crime has been prosecuted.
The problem with implementing the 2011 court ruling is more subtle that what can be shown in any statistics, and any further legislative refinement in favor of international treaties could hurt military discipline in the long run.
According to Captain Chichitz Diaz Leal, "Any proposal for reform that goes beyond this concept, we consider that it would be unnecessary and detrimental to the well armed institute would run whenever the expense of maintenance of discipline, which is the fundamental basis on which a professional army is, effective and efficient."
it is so far unclear in current Mexican press where reforms are to land. Mexican senators involved on this issue just prior to hearing from the military heard from human rights groups and Mexican academics -- both groups long antagonists to the very notion of a military -- so is also unclear how much influence the military can have in the area of fighting organized crime.
Chris Covert writes Mexican drug War and national political news for Rantburg.com and BorderlandBeat.com He can be reached at firstname.lastname@example.org