Justice for all in Mexico
(2012-08-15) 'Justicia para todos: el fuero militar ante la SCJN' -- an op-ed by Director of RFK Partners for Human Rights Santiago A. Canton -- appeared today in the Mexican newspaper, El Universal. In the article, Canton summarizes the long history of military jurisdiction in Latin America and explains how in recent years military jurisdiction has been used to guarantee impunity in human rights violations.
Canton's op-ed is especially relevant this week as Mexico's Supreme Court is discussing 28 cases dealing with the military's authority to investigate its members for abuses committed against civilians. Says Canton, "Given the widespread reporting of violations committed by military and police forces, the decision of the Supreme Court could send a strong message to society that violations by the military and police are no longer tolerated."
An English translation of the article is available below. Click here to read the article in Spanish.
Canton will also be speaking on human rights in Mexico, Thursday, August 16. There will be a live webcast.
'Justice for all: military jurisdiction before the Supreme Court'
In contradiction with the basic principles of our democracies, there have always existed powerful groups in society that create institutional structures to limit the capacity of the rest of society to know, control, evaluate, and judge the actions of its members. Military jurisdiction is one such structure that provides numerous examples of flagrant violations of human rights that remain in impunity.
During World War I in France, Military Justice executed hundreds of French soldiers after decisions made by the Councils of War. The French Prime Minister, Georges Clemenceau, expressed a phrase that would become history: "military justice is to justice, what military music is to music." The expression is of enormous use to understand an important aspect of justice in a democratic society: justice must be one and one alone for all, without exception. No one can be above the law; the long arm of the justice must reach everyone equally, "without distinction to race, color, sex, language, religion, political opinion, or other basis, national or social origin, economic position, birth, or other condition," as established by the Universal Declaration of Human Rights.
Like many of the norms and institutions in Latin America’s countries, military justice is an inheritance of the Spanish Monarchy of the XVIII century, which sought to protect its army from the consequences of its wars abroad. It responded to a military that protected the Monarchy from the internal uprisings that challenged the continuity of the regime. Military justice also prevented the civil justice system from affecting persons charged with ensuring the stability and protection of the same Monarchy.
Throughout the XX century, with the enormous power of the armed forces in Latin America, military justice was strengthened and used to guarantee impunity for human rights violations. The failed defense of the Argentine dictator Videla, during the trial of the Military Juntas in 1985 for the assassinations, torture, and enforced disappearances of thousands of Argentineans, very clearly summarizes the position of the military: "the armed forces, to be able to carry out the ends for which they exist, must be in the position to use their maximum force in a given moment. (…) from these characteristics, linked very specifically to military law and justice, originates the need for its autonomy." To finalize, the defense went on to say that the civil trial of the Military Junta "constitutes a notorious interference by civil justice over the military’s, demonstrating the clearly non-legal and political nature of the process."
With the same goal of maintaining impunity for violations of human rights, the Armed Forces of other countries in the region did the same. In Uruguay, Military Justice sent thousands of civilians to prison with military processes that violated due process, and in Peru the Fujimori-Montesinos used “anonymous” military judges to condemn thousands of people.
In recent decades, many countries have modified their constitutions and laws to distance themselves from the authoritarian concepts and principles that marked our history and have adjusted them to the realities of the XXI century, where civilian power is gradually ending a history of authoritarianism and dictatorships. This process has not been simple and the democratization of Military Justice is one of the reforms that has faced the greatest obstacles.
The Inter-American Court of Human Rights has established precise standards regarding the absolute prohibition of military jurisdiction for cases of human rights violations. In the case of Radilla Pacheco, the court expressed that "criminal military jurisdiction is not the competent jurisdiction to investigate, and where necessary, judge and sanction the authors of human rights violations; rather, the processing of those responsible corresponds to ordinary justice." The Court reiterated that criteria in the cases of Inés Fernández Ortega and Valentina Rosendo Cantú. Moreover, in the case of Cabrera García and Montiel Flores it signaled that "it is the constant jurisprudence of this Court that military jurisdiction is not the competent jurisdiction to investigate, and where necessary, judge and sanction the authors of alleged human rights violations." And ensuring that there would be no doubt as to its absolute prohibition, the Court continued saying, "This conclusion applies not only for cases of torture, enforced disappearance and rape, but for all human rights violations."
President Felipe Calderón, on December 10, 2011, International Human Rights Day, expressed that all active cases related to military abuses against civilians would have be transferred to civil jurisdiction. However, this clear expression of political will from the maximum authority in the Mexican state has not materialized in fact. In the case of Bonfilio Rubio Villegas, an indigenous Naua man who was extrajudicially executed by members of the military, the Secretary of Defense appealed a historic decision that held civilian justice as the appropriate jurisdiction, in representation of the President.
In the following days, Mexico's Supreme Court has the historic opportunity to adopt the Inter-American human rights standards. In recent decisions, the Mexican high court has demonstrated a commitment to complying with these standards. There are no motives to assume that in this opportunity the Ministers of the Court will not continue with that exemplary line to decide that violations of human rights must be judged by civilian judges, settling definitively the discussion over establishing binding jurisprudence. A decision in this regard would have enormous value to advance, not only in the path toward a stronger democracy and respect for human rights in Mexico, but also to send an exemplary and necessary message to the whole region about the importance of equal justice for all women and men.