Neither Truth nor Justice: The de facto amnesty in Mexico

By Sergio Aguayo and Javier Treviño

Translated by Maria Pallais

On July 22 of 2005, the new Office of the Special Prosecutor for Past Social and Political Movement (FEMOSPP) ordered the arrest of former Mexican president Luis Echeverría and his Interior Minister Mario Moya Palencia, charging them with genocide. The indictment accused them of ordering an illegal paramilitary squad to gun down 25 students demonstrators in 1971.

On July 26, a Federal judge ruled the arrest warrants invalid, citing a 30-year statute of limitations under Mexican law, thus quashing the genocide indictment against Echeverría and Moya Palencia.

Later, in September, another judge followed this example and ruled that neither man was guilty of the massacres of October 2nd, 1968, where hundreds of students protesters were killed or disappeared during a combined military and police assault.

Both rulings reflect the failings of President Fox's FEMOSPP, designed to investigate and clarify the activities of all social and political movements of the past, in an attempt to show Fox’s commitment to uncovering the infamous impunity of former Mexican authorities.

Along their path to democracy, all countries have invariably confronted stumbling blocks when judging the atrocities and excesses of their past regimes.

In Mexico, Fox's government had vowed, both verbally and with some decisions, to rule according to law and justice.

But later, the president proposed and/or passed political, administrative and legal resolutions that stampeded the Mexican government into granting a de facto amnesty for the perpetrators of state crimes carried out by the old regime.

Today, as Fox's six-year term draws to a close, his government --heralded as the transition to democracy-- has failed to erase Mexico's reputation for impunity and make-believe.

The context

The issue of what should be done regarding the official atrocities perpetrated in the past was a murky one for decades in the past, but by the end of World War II, the widespread decision was to forgive and forget.

The consolidation of new regimes included a “social amnesia” and a “veil of ignorance” vis-à-vis the excesses of the past authorities.

However, after the Nuremberg tribunals things changed.

The thesis that only by facing the past and exposing the historical truth could democracy be installed became compulsory. Only thus could governments decide if the perpetrators of crimes should be brought to justice, or forgiven, for violating human rights. There was no longer any room for indifference.

When Mexico had to decide, expert opinions were divided about what to do regarding human rights violations carried out during the PRI’s long decades of authoritarian rule.

One political and academic school of thought preferred to forgive and forget arguing that governability was the priority.

National and international civilian human rights movements, as well as relatives of los desaparecidos, with the support of politicians and intellectuals, fought to uncover the truth and/or indict all criminals, following international human rights principles recognized by Mexico.

The issue came to a boil in 2000, when the PRI was defeated in the presidential elections that brought the conservative National Action Party (PAN) to power.

While campaigning as the PAN candidate, Vicente Fox pledged to confront head-on all state crimes carried out by his predecessors.

In fact, it was this very promise that won him the so-called “voto útil” (useful vote) of the social left, which wanted at all costs to oust the PRI from power.

There were other reasons to believe that Fox's government would initiate the process of uncovering truth and fighting for justice.

Confronting the past would represent a pragmatic measure that could strengthen Fox’s new government at a time when respect for human rights is a universal principle that legitimizes rule and constitutes a symbolic first step toward consolidating democracy.

It would also contribute to building a favorable image of a new Mexico in the international arena, where several organizations had expressed their concern with the impunity of bad old days in the country.

And it would send a clear message to the international community that Mexico was prepared to become a true democracy.

These notions are distinctly evident in official documents released during Fox's initial months as president.

Last but not least, as we shall argue later on in this essay, national security was also at stake.

¿Specialized district attorney's office, Truth Commission or Amnesty?

Fox had to choose one of several options. A Truth Commission, like those in South Africa, Guatemala or El Salvador; a specialized district attorney's office to bring to trial those responsible for abuses; or an amnesty that -regardless of its legality or legitimacy-- has been a favorite during periods of political transition in several countries.

Public opinion, Fox's Ministers and his close advisors were all against an amnesty. At the time, it became evident that the Commissioner in charge of Order and Respect (Comisionado de Orden y Respeto) Adolfo Aguilar Zínser, the Foreign Affairs Minister Jorge Castañeda and the Minister of the Interior Santiago Creel --all three known for their long-term commitment to democracy and human rights-- were divided as whether it was best to create a special district attorney's office or a Truth Commission.

In private meetings with Fox, however, the armed forces were the main actor arguing in favor of an amnesty.

Creel believed that a Truth Commission was “extremely risky”, since “we know that, generally speaking, when it begins but not where it ends”.

Rather, he proposed a special district attorney's office whose main advantage was to work “from inside all institutions”, which would strengthen the budding democracy, establish individual responsibilities from those who had violated human rights, respect the legal and judicial processes established in the Mexican Constitution and consolidate the authority of the new regime.

For their part, both Aguilar Zínser and Castañeda fought for the creation of a Truth Commission, arguing that the special district attorney's office proposed by Creel would lead to impunity given the difficulties it would confront.

Its first obvious obstacle, according to both government officials, was the ubiquitous power of the armed forces, which would obstruct all efforts to accuse any of its members.

They also argued that the judicial power would be easily intimidated or corrupted, and that some crimes had been perpetrated by secret agents or paramilitary groups whose link with the authorities was murky at best.

In their opinion, a Truth Commission would identify individual criminals and expose the secret mechanisms of the authoritarian system that allowed those abuses. If the dealings of its repressive apparatus, which kept a good part of its power intact, were better known, it might be easier to dismantle it or at least restrain it, which would have a positive effect on the security of the new regime.

Organizations like Amnesty International and Human Rights Watch, both skeptical about Truth Commissions, applauded it in the case of Mexico, as they believed that it was the best option to confront human rights violators.

During the new regime’s first few months, the proposal of a Truth Commission gained momentum. En April 2001, Fox personally drafted the order instructing that Aguilar Zínser become the Project Coordinator of the Truth Commission and of the new CISEN (National Security and Investigation Center).

Because the president included in the same decision a resolution about past crimes and a reform of the most important intelligence civil service, it followed that he understood the connection between human rights and security.

In the same text, he ordered the creation of a team to follow up the process. It included Aguilar Zínser, Creel, Ramón Muñoz, Rodolfo Elizondo and Martha Sahagún, as well as three academics –Sergio Aguayo, José Antonio Crespo and Clara Jusidman—, whose duty was to work with Aguilar Zínser in elaborating the proposal.

These intellectuals proposed that two commissions be created: one in charge of ascertaining the truth in the most serious human rights violations, and the other, the most important cases of corruption.

Both commissions were to be announced in the president's first address to the nation, on September 1st, 2001. During the following four months, they would define a methodology, carry out consultations with society and select the most representative cases to investigate.

The teams would begin its inquiries on January 1st, 2002 and had 12 months --which could be extended for another year-- to finish their job by which time they would release their findings to Mexican society.

In a meeting held in Los Pinos, the presidential residence, on July 19, 2001, Fox read out loud each paragraph and approved all with enthusiasm. As way of conclusion, he said: “well done, in a week all will be ready to start working”.

Fox failed to fulfill his promise. He remained silent for months. Some argue that negotiations with the PRI for Congress to approve a fiscal reform, stalled his determination to create the Truth Commissions. Winning the support of the PRI meant canceling the commissions.

However, independently of Fox's doubts, the issue remained in society's agenda while the press published ample evidence regarding the responsibility of the old regime's police forces in the disappearance of hundreds.

The atmosphere heated up even more in October 2001, when Digna Ochoa, an outstanding human rights militant, died in mysterious circumstances and, following her demise, various human rights activists received death threats.

Most agreed that it all stemmed from a destabilization campaign orchestrated by the old regime. In the meantime, Fox’s government faced huge pressure, at home and abroad, to do “something” about past crimes.

On November 27th, 2001, during a ceremony chock-full of symbolism held in a building that had once housed political prisoners, Fox announced the creation of FEMOSPP, whose duty was to “procure justice for crimes against people associated with social and political movements in the past”.

In this atmosphere, strident with official boastfulness, the federal government committed to unraveling the truth and making amends for the victims of past genocide. Creel’s proposal had prevailed, but in reality those who wanted an amnesty were the real winners.

An attorney’s office in search of justice

The new Office of the Special Prosecutor for Past Social and Political Movement failed to bring to justice any of the main human rights violators. Besides its own monumental mistakes, it faced huge obstacles. Paradoxically, a massive boycott was the consequence of the State’s actions.

The balance of forces became evident in the process of selecting the person in charge of the office. The president’s ministers had agreed that Fox would appoint Alberto Zsekely, a prominent lawyer and diplomat whose personality and legitimacy was a perfect match for the difficult task ahead.

Before he was officially appointed, Zsekely created a Citizens Support Group (Comité Ciudadano de Apoyo) integrated by academics and experts on the repression of the past as well as the most prestigious human rights activists in Mexico.

However, in an unexpected decision, Fox opted to delegate the appointment on the then Attorney General, general Rafael Macedo de la Concha, who ignored the agreement regarding Zsekely´s appointment and blocked four candidates Aguilar Zínser had suggested.

It became clear that Macedo de la Concha wanted a weak special prosecutor, which he got. Ignacio Carrillo Prieto, who lacked the experience and legitimacy necessary to face such mammoth task, was his choice.

The new special prosecutor was never able to overcome his liabilities. His first mistakes were simply perplexing. The obscure selection process, its secret evaluation criteria and the cancellation of all consultations with human rights NGO´s interested in the issue, didn't help.

The selection of those who comprised the Citizens Support Group was just as murky. Those selected by Szekely were abruptly uninvited in various ways. Initially, the new committee had five members. By 2003, there were 16: a group of academics and journalists whose common trait was their lack of specialized knowledge on the subject, as well as student leaders and relatives of los desaparecidos, whose participation endangered the work of FEMOSPP because of possible conflict of interests.

Its members aside --with exceptions like journalist Denise Dresser--, the committee played a rather passive role and left all the work in the hands of Ignacio Carrillo Prieto.

The mandate of FEMOSPP was also fraught with limitations and ambiguities. Its mission was limited to “federal crimes, directly or indirectly, perpetrated by public officials”, which excluded paramilitary groups and all municipal and state authorities who participated in the repression.

Additionally, the victims had to be “linked to political or social movements”, an ambiguous statement at best. Finally, it lacked a time frame, which allowed the possibility of introducing cases too far in the past.

The special prosecutor’s office began its work under difficult circumstances. On the one hand, there was the pressure of victims justifiably angered after decades of waiting whose expectations had now been raised by the official discourse. And on the other, the time element worked against effective action in the form of the faded memories of some witnesses, missing evidence and the reticence of some to testify. Finally, the alleged perpetrators had extensive financial resources to pay the fees of very good lawyers.

As expected, the Ministry of Defense stonewalled, barely cooperating at all. In its view, the military personnel accused of abuses during the repression were obeying orders from civilian presidents and could only be tried by a military authority.

The one time that any military personnel were brought to trial for their involvement in the dirty war, the High Military Tribunal exonerated the three accused, arguing it had “lost” the evidence against them. A clear sign that the Ministry of Defense was unwilling to punish alleged criminals.

That attitude was probably influential in creating serious conflict of interests. The Federal Attorney General, General Rafael Macedo de la Concha, was a military man in service whose immediate boss was the Minister of Defense. As a youth, he had worked for the Ministry of the Interior and had been close to Fernando Gutiérrez Barrios, one of the key perpetrators of the repression of the past. One of his outside advisors, Humberto Castillejos Cisneros, worked for Macedo’s father, Marcos Castillejos, who defended the former director of the Federal Security Office, Luis de la Barreda Moreno, one of the few against whom an arrest warrant was issued.

The FEMOSPP also engaged in perplexing conflicts of interests. Carrillo Prieto appointed Américo Meléndez as director of Ministerial Investigations, even though he had once been an agent of the Federal Attorney General's Public Ministry. As such, he had “interrogated guerrilla members” from the Revolutionary Armed Movement (Movimiento Armado Revolucionario) imprisoned by the government.

Generalized doubts regarding his commitment as special prosecutor grew when FEMOSPP implemented questionable judicial strategies which, at times, appeared to be designed for failure and set dangerous precedents that hindered future investigations of the past.

Accusing former president Echeverría, among other government officials, of genocide for the assassination of 25 students in June 10, 1971, was the most important example of such strategies. According to the Convention on the Prevention and Punishment of the Crime of Genocide (Convención para la Prevención y la Sanción del Delito de Genocidio), genocide presupposes “the intention to destroy a national group” only if it shares “ethnical, racial or religious” ties. It is, therefore, a complicated legal statute to execute.

Carrillo Prieto argued that the murder of the students was ultimately intended to “destroy a national group”. In his opinion, the 25 students could be considered a “national group” as they shared “complex material and historical links; a common past, similar culture and well-known habits”.

As to the issue of “ethnical, racial or religious” ties, Carrillo Prieto amplified the concept of genocide by stating that “in contemporary civilization, the reasons for prosecution are no longer religious, but rather political and ideological”.

Had Carrillo Prieto been a political scientist, he might have made a good case in some seminar, but as special prosecutor he was wrong. Genocide lacks judicial support.

Strange that he would choose to take that path, considering that, shortly before, Spanish judge Baltasar Garzón had failed in his attempt to build a case against general Augusto Pinochet by accusing him of political genocide.

Whereas Garzón rapidly changed strategy and reconstructed his case with evidence of torture, Carrillo Prieto stubbornly stuck to the genocide thesis.

The result was predictable: On July 26 2005, a judge denied the arrest warrants after ruling that the special prosecutor had failed to prove that the killings of June 10, 1971, could be labeled genocide.

Two months later, Carrillo Prieto failed again. A second judge ruled that the massacre of students on October 2nd, 1968 was not genocide.

While the special attorney's office carried out erroneous strategies, the PAN, PRI, the Executive and the Senate had added additional burdens to the pursuit of justice.

By December 2001, México ratified the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity (Convenio sobre la Imprescriptibilidad de los crímenes de Guerra y Lesa Humanidad) which, in Article I, states that crimes against humanity, such as genocide, are applicable “regardless of the date in which they were committed”.

However, an “interpretative declaration” was added: “Only those crimes committed after Mexico adopted the measure are applicable”, that is, after 2002.

In other words, the rules of the Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity would not apply in the cases under investigation by the special prosecutor's office. This decision was ratified on February 23 2005, when the Supreme Court of Justice ruled against Carrillo Prieto, arguing that the crime of genocide had prescribed (the time element for prosecuting had extinguished).

In doing so, the Mexican government added a juridical protection to human rights violators. In Congress, deputies of the PRI and the PAN modified Article 55 of the Federal Penal Code, which allows adults over 70 years of age to receive house arrest. The left-wing Democratic Revolutionary Party (PRD) failed to include a clause excluding those guilty of severe crimes.

The amendment was implemented May 26, 2004, a few months after Miguel Nazar Haro, a former director of Federal Security, was imprisoned. This time, the Judicial Power ruled that the law could be retroactive and Nazar Haro was released November 29, 2004.

Vicente Fox's government also failed to comply with his commitment regarding unveiling of the truth and repairing damage done to the victims.

When the special prosecutor's office was created, Fox declared “I have decided to issue an executive order” that the “government's Ministries ... transfer all information from the National Archive (AGN) relevant to the investigation of past human rights violations and crimes. This information will be available to all interested, according to the rules of law”.

But there was a problem. The federal government did not provide the financial resources the AGN needed to comply with the president's remarks.

The special prosecutor’s office compiled a great deal of information about human rights violations, an essential tool in reconstructing historical truth. It seems logical that these documents ended up at the AGN which houses gigantic records about that period.

The “Interior Ministry Fund” includes the dossiers belonging to the General Directorate of Political and Social Investigations (Dirección General de Investigaciones Políticas y Sociales), a civilian intelligence agency. Unfortunately, they lack an index to facilitate research.

Another concession was made to the security network of the past. In 2002, the AGN received all the records from the Federal Security Directorate (DFS). It is an amazingly well organized file system controlled by a DFS/CISEN archivist who, according to some witnesses, is very selective about the documents he releases.

In short, the information is there but it lacks the resources necessary to study and consult it properly.

Further, the budget that the Mexican government allocates to AGN is ridiculous. While in 2005, the United States designated 552 million dollars, Canada 104 million, Spain 57 million and Chile 21 million to their National Archives, México only allotted 2.9 million dollars.

This amount hasn’t increased during Fox's five years as president. Between 2001 and 2005, the budget remains .93% of the Interior Ministry's. CISEN receives 25.71%. These figures reflect that the new government continues to prioritize security matters to the detriment of revealing historical truths.

The president also ordered that the Interior Minister create an “interdisciplinary committee” in charge of offering “to repair” the damage done to the victims of the past. But the committee was never established and nothing was done to help the victims.

The balances

It is still impossible, today, to evaluate the motivations of the various participants or to know for sure if Fox's government negotiated with the old regime so that the past would not be confronted in a serious manner. It is therefore impossible to know if there was a master plan or a network of individual actions.

Still, we have introduced enough evidence to ascertain that the Mexican government granted a de facto amnesty to the oppressors of the old regime. Why? Probably because the PAN had few victims of the repression and, because the pressure from the armed forces and the PRI outweighed the proposals of human rights groups, which failed to come up with a common agenda with the victims and their relatives. The fact is that the issue lost public interest.

Some consequences are evident. The culture of impunity remains intact, and it has continued to erode and trivialize the culture of human rights and justice, which, in Mexico, have become abused rhetorical concepts gradually emptied of political meaning.

The chance to discover the size and mechanisms of the security apparatus was also lost. CISEN is an example. In an interview for the magazine Proceso, Aguilar Zínser stated that “all information about somebody that has been compiled by intelligence operations, telephone intervention, credit cards, correspondence, personal activities, is dispersed and only retrieved through CISEN´s security codes. But the spider web can only be unraveled by those who know its secrets, and Fox's government did not dare to take control of CISEN, one of his big mistakes”.

His conclusion is worrisome. “I am convinced that CISEN caters to individuals and groups from the old regime”.

The hypothesis of the government official, who in April 2001 was designated coordinator of the Truth Commission and carried out an investigation of CISEN that was never made public, has yet to be confirmed.

The disenchantment evident in his words, however, reflects a lack of hope that is the heritage of this so-called transition government. While other Latin American countries make important steps in the scrutiny of their past, Mexico has neither truth nor justice. Instead, Fox's government conceded a de facto amnesty.