After Ayotzinapa Report: Could Transitional Justice Mechanisms Address Disappearances in Mexico?

5/27/2016

Few knew of the existence of Ayotzinapa before 2014. But since September 27 of that year, this small community six hours from Mexico City has become an international symbol of the fight against impunity.

On the night of September 26 to 27, 2014, students from the Rural Teachers’ College in Ayotzinapa stopped in the town of Iguala, halfway on their trip to Mexico City to participate in a demonstration commemorating the slaughter of students in 1968.

In Iguala, the students peacefully commandeered five buses to get to the capital –a practice that was not uncommon in the region by leftist students from teachers’ colleges, one widely recognized and largely tolerated. The local police made the students get off the buses, allegedly accused of attempting to sabotage an event that was taking place in the town. The officers put the students in police vehicles and drove off. The next morning, six people were found dead, and 43 of the Ayotzinapa students are still missing today.

The Mexican State put the Prosecutor General’s Office (PGR) in charge of investigating the terrible facts. In its conclusions, the PGR found that the students had been delivered to the Guerreros Unidos cartel, which incinerated their bodies in the garbage dump in the town of Cocula, and then threw their remains in the river.

Even though several accused perpetrators confessed to the crime, many questions remain unanswered, and the contradictions in the factual accounts have been multiplying every day.

The Inter-American Commission on Human Rights created an Interdisciplinary Group of Independent Experts (IGIE) to investigate what occurred in Iguala and to shed light on the whereabouts of the missing students. The IGIE, which investigated the Ayotzinapa case from March 2015 to April 2016, is made up of four lawyers and a psychologist, all with reputable international experience investigating human rights violations, especially in other Latin American countries. Their reports, the last of which was released in April, detail the students "night of terror" and the many unanswered questions around the case.

We are talking with Carlos Martín Beristain, one of the five experts on the Interdisciplinary Group of Independent Experts. Carlos is a doctor and psychologist with 25 years of experience treating victims of human rights violations and their families. He worked on the report “Guatemala: Never Again,” which investigated and exposed atrocities committed in Guatemala during the civil war. He also worked in Colombia with victims of the internal armed conflict, and in Peru. These are countries that have carried out transitional justice processes to address the legacy of mass abuses: could transitional justice mechanisms have a role in this context?

I was very struck by the quote of the mother of one of the missing students that you used at the beginning of the second Ayotzinapa report, which was presented on April 24th. In that quote, the mother of one of the missing students uses words that we have often heard from the mouths of victims in so many other countries: truth, justice and reparation. Could you tell us what the main demands of victims in Mexico have been, and how they are related to the demands that you have heard in other countries in which you have worked?

Unlike the work in other countries from more of a transitional justice perspective, in which work is done on cases looking into the past, or after a lot of time, the difference in this case and the difference in the IGIE is that we have been working almost in real time, during the very time in which the investigation is being carried out.

But as you correctly say, many of the victims’ demands are similar. The times and their experiences change, but they are often very similar situations. What the families asked us to do from the beginning, in the first meeting that we had with them after arriving in the country, was: “always tell us the truth.”

The truth is a fundamental element of the victims’ demands, and obviously to know what happened with their missing children. The version constructed by the PGR, which at the time was called the “historical version,” indicated that the young people had gone to upset a political event, that they had been mistaken for drug-traffickers, and that they had been murdered and burned on an atrocious pyre that night for 16 hours. It is very important to the families that we investigated that truth and demonstrated that it was not true, because when we presented the report they told us: “a weight has been lifted from us.” It is the weight of those distorted, stigmatizing versions that are not true, and that are sometimes imposed as the only truth. They are very similar to those of many other contexts and countries in which the people want to know what really happened, because it helps them deal with the impact of the disappearance, in this case.

And what other claims would you highlight, such as justice or reparation?

Well, reparation for the families is not what is important, because reparation is generally associated with financial reparation, and with cases that are, let’s say, closed, in which everything possible has been done and reparation for damages is discussed. Here, the relatives, and we too, have spoken more about attention to the victims: what has to be done in the field of health, in the field of psychosocial care, etc., in order to support the demands of the relatives and their struggle, as well as the impact that all of that is having currently.

Obviously, their demand is related to justice, to know what really happened, who is responsible, and that the appropriate sanctions will be applied in accordance with the facts. These are universal demands of many victims; in this case the demands are being made at the same time that the investigation is being conducted, and the demand for justice is oriented to the present, not just looking back to justice in the past. But the demands are very similar, obviously, because they form part of the elements of human dignity, of the experience of millions of victims in many countries, when confronting human rights violations.

Although Mexico may not fit the definition of “country in transition,” it is true that human rights violations are being committed in the country on a massive scale. It is estimated that the violence caused in recent years by drug trafficking and the “firm hand” strategies used by the military to counter it have resulted in more than 150,000 deaths and more than 25,000 disappearances, among other serious crimes against humanity. Given your long professional career, do you think that transitional justice measures could be useful in addressing the serious violations that are occurring in Mexico, and especially in cases involving forced disappearances, extrajudicial executions or torture, such as those investigated in Ayotzinapa?

I think that when we talk about transitional justice we have to have a much more open conception that is much closer to what is needed in the countries. Because situations involving political transition – if you want to place the emphasis on situations of political change, of political transition – have occurred in the contexts of changing from dictatorship to a democratic process, or ending an armed conflict.

But also in other countries in which those conditions have not existed as such, or in more complex political situations in which there are numerous or massive human rights violations, since many of the victims’ demands, even for the tools developed based on international experience for addressing those problems, are similar regardless of the existence of a situation of political transition as such or of political change as such.

If one looks at the case of Mexico and reviews many of the proposals that we have made for structural reforms that are needed to address criminal investigations, to enable them to break the cycle of violence, impunity and human rights violations that has existed in Mexico in recent years, many of those issues are part of what is considered to be an agenda for the investigation of the truth (or, more broadly, a truth commission), the demands of justice and the mechanisms of justice to confront those situations.The rest has to do with attention to victims or reparations.

I would not put too much emphasis on the condition of political transition as the central element, but rather focus on how a country confronts massive human rights violations when the formal justice and investigation systems lack the capacity to do so, or are sometimes complicit in that situation, or are negligent with regard to the facts, or are sometimes overwhelmed by the facts. New tools are needed, and our little experience for a case shows many of the elements of the experience that we have had in other countries, sometimes in a truth commission or sometimes in ways of strengthening the justice system, which are also useful for countries in which, let’s say, there is no regulated “political transition” as such, but in which there are phenomena of massive human rights violations, such as in the case of Mexico, in the cases of people who have been murdered or have disappeared in the last decade.

And the cases of structural violence within the country itself. Could we say that the Ayotzinapa investigation is a door into a much broader phenomenon in Mexico?

Sure, the Ayotzinapa investigation shows many structural failures in the investigation system. It is an excessively formal and bureaucratized investigation that places more emphasis on form than on the development of content and, probably, the importance of the investigation itself. An investigation that is very dependent on statements and confessions, less so on expert reports and objective evidence. A still inquisitorial system that is transitioning to an accusatory system, but a very rigid one that does not allow for an effective investigation in many cases. A lack of independence of the expert services, which depend on the Attorney General’s Office (in this case the PGR), so that they do not have sufficient independence to obtain more objective, consistent or independent evidence in the assessment of the cases.

All of these are structural factors that affect the investigation, but I would also say that they affect issues that have more to do with attention to victims or communication with victims. Frequently, in the Ayotzinapa case, but also in Mexico in general, the victims are stigmatized. Versions are given through the media that have little to do with what happened and the investigations lack ways of including the victims.

Something crucial that is not generated in Mexico, or in many other countries, but I would say very decisively in the case of Mexico: mechanisms that help generate trust. Because if there is something that has deteriorated in the case of Mexico between the victims and the apparatus of the State, it is trust and credibility. Without trust and without credibility the country may have a great investigative structure, etc., but it is not going to obtain any results that generate confidence in the institutions. There has to be a change in the relationship with the victims as a central element to enable a transformation of violence in the country.

The IGIE was created by the Inter-American Commission on Human Rights, with the agreement of the State of Mexico, to determine what occurred on the night of September 26 to 27 in Iguala and who are responsible for the crimes and, to the extent possible, to discover the whereabouts of the 43 missing students. During a year of investigation, you worked intensely, interviewing relatives of the victims, survivors, witnesses, officials and suspects. You studied the 85-volume file containing more than 50,000 pages and you conducted additional specialized analyses with internationally recognized experts. You published two reports, of around 600 pages each. The first was published after six months of investigation, in which you refuted the “official version” of the facts investigated by the Prosecutor General’s Office. What were the consequences of that first report in terms of the Mexican Government’s cooperation in the IGIE’s investigation? And what long-term consequences might the Government’s actions with respect to the investigation have for impunity in the country and for Mexicans’ perception of their institutions?

The publication of the report had a very positive impact for the victims, who said that it had all been part of a lie (or of things that had been transmitted as unquestionable truths and that we demonstrated were not true), and that a weight had been lifted from them.

For the State, the conclusions that we reached generated a certain perplexity, despite the fact that we had reported many of them earlier. This was especially the case in regards to the fate of the 43 missing students, and our confirmation that the mass burning of the 43 bodies in the dump in Cocula would not have occurred on the night of the 26th, and that a good part of the investigation would have to be reopened, that it had been oriented only to that circumstance.

That opened a window of opportunity at the time. On the one hand, it was an uncomfortable truth: the State had invited us to the country and had facilitated a good part of our work (although we also ran into some obstacles created by agents of the State). But the report opened the opportunity for transforming the investigation. We also indicated at that time that in order to remain in the country, in order for our work to make sense, the investigation would have to be taken away from the Organized Crime Section within the PGR, which had investigated the case until then and was very focused on this version – it had been negligent and had lost key evidence in that investigation – and that a new team needed to be created with a new, fresher view and with the contribution of our lines of investigation in order to transform it.

That began as we reached an agreement with the Inter-American Commission in October. We began to work well with the new team but two months later they were again focusing on the official narrative. The State’s position was increasingly limiting as was evident in a few very specific things. For example, procedures that we requested were never carried out or were delayed without any explanation. This was because the version that had been constructed was that only the municipal police of Iguala and Cocula were implicated, but we began to see that there was other evidence that the state police were also implicated, that there were agents of the ministerial police, or the federal police, who at least were present where the events occurred, Army and Intelligence agents that were present. So that broadened the focus of the investigation and caused part of the State apparatus to react by trying to limit our investigation. The closer we came to other actors and other scenarios, the more they tried to close that investigation and go back to the scenario of the garbage dump and the earlier version.

That has been very negative for us because it obviously prevented us from being able to proceed, from being able to know more today about what happened and who was responsible for what happened. We told the State from the beginning: this is not a good attitude towards the truth, trying to limit it and trying to simulate things. Although the truth is uncomfortable, it is much better to recognize it and discuss it and assimilate it, because that is going to be transformative for Mexico.

We have also told the State of Mexico that if this case is not resolved, it will haunt Mexico for many years. Besides being, for the families, a permanently open wound that needs an answer, obviously. Obstacles cannot be allowed to be put in the way of an investigation in a case such as this, with all of the elements that we have investigated and put on the table with the two reports.

And how will that also affect the perception of the general population and the distrust generated by the institutions themselves?

On the one hand, that may confirm many of the experiences that the people have already had, of the unwillingness to take something to its logical conclusion. Despite the statements of the President, who said: “we have to investigate, come what may, and to the ultimate consequences.” In practice, those obstacles have shown that as we have come closer to key elements of the investigation, the response has been to fragment the case. That is, to take some of the information and use it in other cases, not to conduct procedures that were important, sometimes trying to get ahead of the team by carrying out procedures that we were planning.

We also found that that 17 of the accused [gang members who confessed] showed signs of torture. All of that calls into question the ways in which the work and investigation in this case were performed, and obviously breaks the people’s trust or reinforces their distrust.

On the other hand, I also think that it has a positive effect in terms of seeing that when there is a team that has the experience and capacity to conduct an investigation, to contribute to the State, there can be significant advances. We have achieved things that I believe are very important. When we came to the country, many people in organizations, the media, analysts, etc., told us: “You won’t be able to do it, they won’t let you.” And that was a kind of “self-fulfilling prophecy” derived from an experience of impunity over many years. One could see in this confirmation that we could not reach the end, but I think that we have also confirmed that a relevant investigation can be conducted, that very significant results can be obtained, that the two reports that we have prepared are solid reports that base the investigation on another point. Sooner or later that will have a very significant impact for the case. We have pointed out the importance of addressing that quickly and effectively, of not trying to seek restrictions to prevent things from moving forward, because that will only worsen the situation and the disrepute of the institutions in this case.

And how has your own experience in other contexts, in which, perhaps, you encountered this kind of opposition by governments or social groups that do not want the truth to be made public, prepared you? How has your experience in countries like Guatemala, Peru and Colombia helped your work in Mexico?

One puts into play everything that one has, and the experience that each of us has had has been key for many things, from very small details to deciding on the work strategy in the country. The important thing for me, if one wants to summarize some things that have been key, I would say, on the one hand, the conviction that an investigation of this kind cannot be conducted without two things. There are two essential pillars of our work: one of these has been the case file, the official investigation, the review, the statements, etc. That has been a key element for the investigation. And the other has been the victims – that is to say, the taking of statements, the survivors, the relationships with the families, trust, credibility. That has been a central element for our work. These two things have been fundamental. These things cannot be separated. This for me is a key element of the lessons learned from many experiences, but it has also been important in the case of Mexico.

Furthermore, from the outset our role has been one of “assistance” in the investigation. That is, we helped the Mexican State in different areas – in the search, the investigation and the attention to the victims – to take actions that meet the needs and international standards in those areas in this case. And that entails working closely with the State: giving recommendations and suggestions, sometimes even providing small training sessions to help deal with the situation. All of the previous experience that each of us has had in different areas has obviously been very important.

And also because we [not] only want to evaluate what happened in the past, but also to advance the investigation. Our role is not to criticize what has been done, but to suggest things and move the investigation forward. So, that perspective of how we evaluate what has been done, but also of what we propose and what we monitor so that it is done properly, is also very important, and maybe a little different from other types of cases in other countries.

Another thing that I think is important is the public dimension. We are like technical assistance, but we have also had public relevance. Our technical assistance has not been limited to State officials. The case has had a great impact not only on the families: the case is a wound in Mexico, in the history of Mexico, and in Mexican society. And from the beginning we also thought that we needed a public communications policy. Not just to wait until having our final report, but maintaining a public communications policy that would help people know about what we are doing, what the advances are, the difficulties, what the significant elements are. Because it is a truth that the process itself has to be assimilated. You cannot expect to have a final report from which one is going to take everything and have that truth be assimilated, rather the process is part of that work. Thus, sometimes a truth commission has public hearings in which they discuss cases so that they can be known and assimilated. Well, we have also tried to maintain a public communications policy to report the results of our work. And to help Mexican society to know what we are doing, to generate confidence in the work, and to continue offering results along the way.

In your general recommendations to the Mexican government regarding the disappearances in the country, you name many of the mechanisms that have been applied in transitional justice processes in other countries, like the creation of a commission to search for disappeared persons, the creation of a national victims’ registration, the promotion of historical memory, security body reforms and more. What initiatives that have been carried out in other countries, such as Guatemala, or more recently Colombia, could be useful in addressing the serious problem of disappearances in Mexico?

All international experience, and particularly that of Latin America, is very relevant for Mexico. I do not think that things can be transferred from one country to another, but the first thing that should be done in Mexico is to be aware and not deny the problem. Thinking “that is something that happened in Guatemala, or in the war in Peru, but things are different here,” I think that those ways of minimizing the impact of what Mexico is experiencing and not letting it to be touched by the experience of other countries is misguided. Clearly, there are different social and political dynamics that are not comparable, but there are many tools that are fundamental. For example, Mexico implemented a Victims’ Law, if you will, almost by assimilation of the Victims’ Law in Colombia.

But then Mexico does not have the experience that other countries have had in the construction of many of those tools. It does not have the experience or human rights work that other countries, such as Argentina, Chile, Guatemala and Colombia, have. And I think that it has to feed off much of that experience, because it seems that many of the things that Mexico is experiencing are not happening in Mexico. This whole dynamic of violence and human rights violations that has occurred, especially (but not exclusively) in recent years,, because there are many things that originated in the period of the Dirty War of the 70s, etc., and that also come from this so-called “war on drug trafficking,” from the Calderón administration to the present. Let’s say that Mexico has been improvising answers often without experience and without in-depth reflection.

I think that there is a lot of reflection in the case of several of the countries that you have named that is very important for the case of Mexico in very specific things. Regarding the Victims’ Law: a Victims’ Law was approved that is now going to be reformed. It has to be reformed taking into account the Mexican experience and the experience of other countries, so as not to reproduce the same problems of approving a law by assimilation with others, which later does not meet the needs or which has critical internal obstacles that prevent that law from functioning. That is what is happening with the Victims’ Law in Mexico. Or the search commissions and the victims’ registries; all those things that Mexico has been doing by assimilation must be done with more discernment and by working much more on the basis of international experience.

The IGIE has also tried to fuel the discussion on the Forced Disappearance Law, regarding how that law should be based on the international experience. And there is our experience in Guatemala, in Colombia and in other countries fueling the discussion in Mexico about how that law should be drafted. Opinions such as “these countries are different,” or “we are not in a transitional process here,” which sometimes are superficial ways of denying reality, should not be the central elements of the debate. The debate has to be focused on the tools constructed in Latin America, more or less, and with many difficulties in different contexts and countries, and I think that all of that has to fuel a discussion in Mexico about the public policies for dealing with the violence and human rights violations.

We have made some very concrete proposals in terms of the investigation: the investigation of context does not exist in the PGR, there is no unit dedicated to that; the investigation of the responsibility of the chain of command. These kinds of investigations have not been conducted in Mexico. These are things that must be shared from the international experience, they have to fuel a transformation in the administration of justice in Mexico, which needs profound transformations like those that one sometimes sees in contexts called “transitional.” Although this context is not called that, it needs structural transformations.

What can now be expected from the IGIE and the Ayotzinapa investigation?

Many things can be expected from the investigation, because there are many things that it has not been able to do. Our last communiqué includes 20 key points for the investigation and the work with the victims, for monitoring the case. The Inter-American Commission is currently deciding on the mechanism for monitoring the case. There has to be international supervision of the precautionary measures, which included the creation of the IGIE. Although the IGIE will not continue as a group, the precautionary measures for the protection of the victims will continue to be effective, and the mechanism for monitoring the investigation, assisting the victims and searching for the missing has to be implemented.

What we hope for is a transformation in the State itself to help this go forward. If there is no change in attitude with respect to the investigation and the obstacles, the monitoring mechanism will be faced with the same problems that we ourselves have faced, and that would be the worst news for the case and for Mexico.

Let’s hope that this does not occur, but what always concerns us most are the victims. The victims are the ones who have made the case go forward. Their fight for memory and the truth was the reason that we came to the country. We believe that there must be ways to assist and recognize the victims because in this and other countries, they are always the ones who have not let the cases die, and who have kept the memory alive, which has had transformative effects for entire societies at very specific moments. I think that the families need that assistance, and that is part of what mechanisms must ensure.

Watch

They Took Them Alive is a new documentary exploring the stifled investigations into the 43 missing students from Ayotzinapa and the efforts their loved ones have made to uncover the truth about their whereabouts. It also follows IGIE in their investigation and the challenges they face. The film was produced by Field of Vision in association with Rayuela Films and directed by Emily Pederson.

Field of Vision - They Took Them Alive from Field Of Vision on Vimeo.

PHOTO: A delegation of the Inter-American Commission on Human Rights (CIDH) received testimonies of parents of the 43 students missing since September 2014, as well as from survivors, relatives of students injured in the same events, and students of the Rural Teachers’ College in Ayotzinapa. September 29, 2015. (Daniel Cima / CIDH)