Peril and Impunity in Mexico: Justice in Tlatlaya

The decade long drug war has brought the Mexican military and judicial system eye to eye with the abyss. Corruption and brutality have become endemic in the Mexican government’s war on drugs, and sweeping legal reform has brought about little more than a cosmetic change in policy. Four consecutive Inter-American Court rulings against Mexico had already established that military justice should only operate when there are no civilians implicated and when the crime itself is of a military nature. Several years later, the Mexican Senate finally approved in April a reform to the military justice code that attempts to incorporate these international norms. It is against the backdrop of this reform that the recent massacre in Tlatlaya questions the Mexican government’s will to redress the Faustian bargain of military impunity brought about by the war on drugs.

On June 30, military officers killed 22 alleged drug traffickers in the municipality of Tlatlaya after what they called a “fierce combat with an armed gang.” While the Governor of the region was quick to praise the military for their decisive action, reporters soon began to challenge the established narrative. In September, an anonymous eyewitness alleged that soldiers had captured the suspects, interrogated them and then shot them in cold blood. Backed by this evidence, human rights NGOs and foreign governments pressured the Mexican government to initiate proper investigations: The UN special rapporteur on extrajudicial, summary and arbitrary executions asked that Mexico investigate the deaths of the 22 alleged criminals, given the possibility that the incident were indeed a case of summary executions. As a result, accusations have been simultaneously brought to civil and military courts, but both these instances continue to be employed to protect military officers rather than civilians — thus failing to, four months later, deliver any meaningful results.

The Military Justice Attorney General convicted all seven soldiers and a general involved in the confrontation for offenses against the military discipline, disobedience and infraction of duties. They are now detained at the Military Camp 1 A, as a disciplinary measure.

Meanwhile, civilian prosecutors are evading their responsibility to investigate and prosecute military officers implicated in the Tlatlaya case, in blatant contravention of the parameters for civil prosecution established by the Inter-American Court and the ensuing reform to the military penal code. And they are doing so through deliberate omission, coercion of witnesses and manipulation of evidence. Indeed, the Mexican Attorney General’s Office convicted the general and two of the soldiers for homicide, who are currently detained. However, by prosecuting only three of all eight soldiers implicated, it is clear that the federal prosecutors are discharging the other five soldiers who, if not directly involved, were at the very least accomplices in the summary executions that took place.

Distrust in the Attorney General’s handling of the Tlatlaya case is not only a matter of speculation. Just this week, Mexico’s National Human Rights Commission released a report that corroborates what many observers have suspected about the killings and ultimately accuses the federal prosecutors of tampering with the evidence. The results of the Commission’s independent investigations are shocking: at least twelve people were arbitrarily killed by the military, including three adolescents; at least five of the eight soldiers present were involved in the massacre; some of the bodies showed signs of beatings before being shot; the crime scene was altered to support the army’s version of the events; and, most shockingly, state prosecutors coerced the three survivors of the massacre to corroborate the army’s story through beatings and threats of rape, and they didn’t thoroughly document the crime scene in its investigation.

The effects of the National Human Rights Commission’s report are yet to be seen. What is certain, though, is that this report exposes a reality in Mexico which President Enrique Peña Nieto cannot afford at this point. As the Americas division director of Human Rights Watch pointedly remarks, “This is a huge blow to Peña Nieto’s credibility on human rights — not just the barbarity of the crime, but the fact that it was covered up for this long.” Enrique Peña has been struggling to preserve Mexico’s legitimacy abroad in the past few weeks, and his response to what has been referred to as “one of the worst incidents of human rights abuses ever committed” will be the ultimate statement on how much corruption and impunity his administration is willing to tolerate (also see Ayotzinapa: Exposing the Fallacy of the “Mexican Moment”).

The Tlatlaya case will continue to put to the test the reach of civil jurisdiction as a tool to deter human rights violations by the military. The reform to the military penal code paved the way for some justice in the Tlatlaya case already, and can have an even greater impact if and when the government toughens its response to investigation and prosecution. But it may, unfortunately, take more than Tlatlaya before we can expect the government to be willing and able to respect the spirit of the law expressed in the new military penal code.

In fact, the Mexican Supreme Court has been reinterpreting the applicability of military jurisdiction to expand its scope on other frontiers. On October 20, in resolving a case of amparo forwarded by the soldier Luis Alberto Martínez Campos, six out of ten ministers of justice supported that the military tribunal is competent to try federal crimes committed by soldiers if and whenever there are no civilians involved. Campos was accused in a military court of crimes against health, specifically of permitting the traffic of marijuana into the United States. He filed a writ of amparo, a form of constitutional relief, claiming that since he was being accused of a crime against health he couldn’t be tried in a military court. In the Supreme Court’s analysis, the majority argued that as the crime did not affect civilians, the sentence handed out by the military court was valid. The opposing ministers, on the flipside, invoked the Inter-American Court rulings, specifying that, in times of peace, an on-duty officer can only be tried in military courts if the crime pertains to the military discipline itself. This recent decision reveals the deep fractures in the Mexican Supreme Court. The walled garden approach to military justice would appear to be yet another deliberate attempt to block investigation and prosecution against officers involved in the trafficking of narcotics, allowing systemic corruption to metastasize at the heart of Mexican society.

Military control over cases that should concern civilian courts undermines central constitutional principals, rights and institutions: it subverts the rule of law and access to justice. Atrocities like Tlatlaya capture the public imagination, reminding us that empowering the military justice system corrupts the right to fair recourse and submits military officers and citizens — guilty or innocent — to an arbitrary application of the law.

Tlatlaya may point Mexico to a new direction, but as long as the state keeps granting military courts extraordinary power to oversee crimes that do not pertain to their functions, the further it promotes the corruption and corrosion of its own institutions, and the further it entrenches itself in a cyclic war it does not have the institutional capacity or integrity to end.