August 29, 2008

The Mexican daily El Universal recently obtained an executive summary of a 600-page proposal drafted by Mexican generals that, if adopted, would create a National Police force "with military discipline" that would replace the Army in President Felipe Calderón's war on drugs and organized crime. The proposal, reportedly delivered to Mexican Secretary of Defense Guillermo Galván in mid-August, also calls for Congress to change the constitution to allow the death penalty for police officers who are found to be in league with drug traffickers. The death penalty, which hasn't been used in decades in Mexico, was formally outlawed by President Vicente Fox in 2005.The proposal comes at a time when the presence of approximately 40,000 army soldiers and 5,000 federal police officers in eleven states to combat organized crime is becoming increasingly and universally unpopular. Even Mexican members of Congress have called for a complete withdraw of the Army back to its barracks. Due to the Army's inexperience in carrying out criminal investigations, dealing with civilians, and non-lethal or less-than-lethal policing tactics, Calderón's decision to deploy it in civilian areas has turned a large swath of Mexico into what he himself admits is a war zone. Citizens who originally welcomed the strong-handed approach to combating drug violence in their towns now march in the streets demanding protection from the Army. Since Calderón declared open war on organized crime a year and a half ago, over 4,152 people have died drug-related deaths, 87 unresolved formal complaints of crimes against journalists have accumulated in the Mexican Attorney General's office, Mexico's National Human Rights Commission has documented 634 cases of military abuse, and the country's homicide rate has increased by 47%. By all measures violence has sharply increased, not decreased, under the Army's watch.Special Justice for PoliceThe generals' proposal to the Defense Department includes the creation of a special legal structure for the police, different from the laws and instruments that apply to civilians.The most striking difference would be the imposition of the death penalty for police who "establish alliances with organized crime." This proposal comes on the heels of a proposal from Mexico's Green Party (PVEM in its Spanish initials) -which is allied with the notoriously authoritarian and violent Institutional Revolution Party (PRI)-to reinstate the death penalty for kidnappers and police who aid and abet them.Mexican human rights organizations are deeply disturbed by government efforts to reinstate the death penalty, even in a limited manner. Madeleine Penman of the Miguel Agustín Pro Juárez Human Rights Center (Centro Prodh) notes:

The reinstatement of the death penalty would constitute a grave setback for human rights. Indeed, since the death penalty has been abolished in Mexico, to reinstate it would directly violate numerous human rights instruments to which Mexico is a party, such as the American Convention on Human Rights, the Protocol to the American Convention on Human Rights to Abolish the Death Penalty, and the Second Optional Protocol to the International Covenant on Civil and Political Rights, Aiming at the Abolition of the Death Penalty.

Even though some of the proposed special laws that would apply only to police are harsher than those that currently apply to civilians, there is still concern amongst human rights organizations that the proposal continues and expands upon a disturbing legal trend in Mexico: what Penman refers to as the "segmentation of justice for different ends." Mexico currently has a special legal system for the military, for members of organized crime, and for everyone else.The different set of laws for members of organized crime are contained in the Federal Law Against Organized Crime. Under the law, any group of three or more people who commit or conspire to commit certain crimes are subject to longer prison sentences. They also have fewer legal protections than other civilians. Oddly, drug trafficking is not considered organized crime under the Federal Law Against Organized Crime, even though Calderón calls his military campaign against drug cartels an effort to fight organized crime.The special military legal system, on the other hand, has long been accused of allowing the military to commit human rights abuses with impunity-so much so, in fact, that it has been theoretically banned under the Merida Initiative, also known as Plan Mexico. One of the few stipulations of this US military aid package to Mexico is that soldiers and police be tried in civilian courts. Under the special military legal system, the military investigates, tries, and sanctions itself.It's no wonder, then, that human rights organizations are opposed to yet another special justice system for government agents. In addition to its questionable compliance with Plan Mexico's so-called human rights conditions, "creating yet another sub-set of justice for police runs the risk of yet again carving up access to justice in Mexico, making it less accessible for victims of abuses to reach an outcome based on what can be considered due process and equality before the law," according to Centro Prodh's Penman. Anticipating this criticism (and perhaps therefore validating it), generals behind the proposal for a special legal system for police told El Universal, "It wouldn't be a way to provide impunity or protection to the police. Rather, it would be a legal structure to contain it, discipline it, and to avoid excesses."Again, far from containing radically new ideas, the generals' proposal for a special legal system for police is in the vein of current government discourse. In an apparent attempt to comply with the Merida Initiative's requirement for the creation of an independent commission to review and investigate complaints against the military and police, Mexico's government-sponsored but theoretically independent National Human Rights Commission (CNDH in its Spanish initials) recently released proposals for "impartial and autonomous" commissions to investigate police and military crimes. The supposedly autonomous commission or commissions would be located within the District Attorney's office. Penman says the proposal amounts to "getting the same staff to play different roles inside the PGR [Attorney General's office] and the MP [District Attorney's office], which is often the habit in law enforcement institutions in Mexico-shuffle around the same pack of cards yet not create anything new or truly independent." The similarity of the proposals isn't lost on Centro Prodh. It reports in its blog: "Coincidentally [the CNDH's proposal] appears to be ideal for the establishment of a special legal system for police such as the one advocated in the military [generals'] proposal."Blurring the Line Between Police and MilitaryAccording to El Universal, the generals propose the creation of a joint chiefs of staff within every government department involved in protecting national security. This includes the Defense Department (SEDENA in its Spanish initials), the State Department (SeGob), the Secretary of Public Security's office, the Attorney General's office (PGR), the national intelligence agency (Cisen), the office for the Specialized Investigation of Organized Crime (SIEDO), and the Federal Investigation Agency (AFI). This means that while the proposal calls for the creation of a national police force, the new force would have military training, military discipline, and military commanders. This threatens to further blur the line between military and police functions in Mexico. Penman argues:

This proposal, although ostensibly designed to allow for the withdrawal of soldiers from direct policing tasks, would instead impose a military structure on the civilian police forces for an undetermined period of time, as well as increasing the power of the military within each governmental department.... Center Prodh, while calling for the withdrawal of the military from policing tasks, reiterates that the goal of such withdrawal should be to reinforce the control of civilian institutions over public security tasks. In no case should any withdrawal plan involve subjecting civilian bodies to greater military control...

Far from reducing the skyrocketing violence resulting from the war on organized crime, the creation of a police force with military training may only serve to further increase violence. Penman points to the Federal Preventative Police (PFP in its Spanish initials) as an example. Many of its officers have received military training. "This is a police force that has demonstrated its ineptness at carrying out civilian policing functions, often spilling over into the excessive use of force (for example in Atenco and Oaxaca). What we worry about is that in the "fight against organized crime" the term delincuencia organizada [organized crime] is so poorly defined that it has become a catchall for the criminalization of social protest."El Universal reports that in order to become public policy, the generals' proposal will first have to be approved by the Secretary of Defense, who would then need to pass it on to the President's office to be incorporated into the national public security strategy.