The accused (from left): Public Security Secretary
Genaro García Luna, Defense Secretary Guillermo
Galván Galván, President Felipe Calderón, and Navy
Secretary Mariano Francisco Saynez Mendoza.
Netzai Sandoval, the lawyer who is preparing the complaint, argues that the ICC has jurisdiction in this case because Mexico is a signatory to the Rome Statute, and because the country’s drug war constitutes an “armed conflict not of an international nature.” The Rome Statute, which created the court in 2002, defines an “armed conflict not of an international nature” as “armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.”
Details of the Complaint
In addition to President Calderón, Sandoval has requested that the ICC’s Office of the Prosecutor investigate Public Security Secretary Genaro García Luna, Defense Secretary Guillermo Galván Galván, Navy Secretary Francisco Saynez Mendoza, drug kingpin Joaquín “El Chapo” Guzmán Loera, and “other authorities, military officials, and drug traffickers who are responsible for war crimes in Mexico.”
The Office of the Prosecutor is responsible for determining admissibility, defendants, and charges. However, Sandoval has requested that the Prosecutor investigate both government officials and drug trafficking organizations for war crimes and crimes against humanity. He argues that both sides of the conflict have committed murders, rape and sexual slavery, forced disappearances, physical mutilations, inhuman treatment and torture, extensive destruction of property, and attacks against the civilian population, all of which are classified as war crimes or crimes against humanity under the Rome Statute.
Sandoval notes that the Army has murdered and tortured innocent civilians at military checkpoints and during military operations. “It has attempted to cover up these incidents in order to guarantee impunity,” argues Sandoval. In 2010, for example, the military killed two students at the elite private university Tec de Monterrey. Soldiers planted weapons on the students’ corpses and removed their backpacks and student IDs to make them appear to be cartel gunmen.
The complaint that Sandoval will present to the ICC also details war crimes committed by criminal organizations. It specifically mentions the massacres perpetuated by unidentified gunmen at drug rehabilitation clinics that are occurring with alarming frequency in various northern states. Moreover, he accuses drug trafficking organizations of forcibly recruiting children under fifteen years of age, which has been demonstrated by arrests of children such as 13-year-old Edgar Jiménez Lugo, a cartel hitman who says that a drug trafficking organization kidnapped him when he was eleven and ordered him to kill or be killed.
Sandoval argues that both the government and drug trafficking organizations have committed physical mutilations. Early in the war, drug trafficking organizations began to terrorize the civilian population by dumping tortured and mutilated bodies in public places such as in dance clubs, alongside highways, hanging from overpasses, or in front of government buildings or schools. In late 2009, the government responded in kind: the Marines killed drug kingpin Arturo Beltran Leyva in his home, and then employees from the medical examiner’s office stripped him down to his underwear and covered his bullet-ridden corpse with bloody peso notes and U.S. dollar bills. They took pictures of his semi-nude body and leaked the pictures to the press, presumably to intimidate Beltran Leyva’s criminal organization.
The complaint also accuses officials from the Mexican government’s National Immigration Institute (INM) of collaborating with drug trafficking organizations to kidnap and traffic Central American migrants who pass through Mexico on their way to the United States. The government has admitted widespread corruption in the INM, where alarming numbers of immigration agents detain migrants and then hand them over to cartels in exchange for a fee. The cartels themselves frequently kidnap dozens of migrants in a single raid. The criminals detain the migrants in “safe houses” while theydemand ransoms from the migrants’ families in the United States, or they enslave the kidnapped migrants to work in fields or—in the case of women—the sex industry as prostitutes or in pornographic movies.
The Gravity Threshold
Due to its limited capacity, the ICC declines to investigate some cases in which it has compelling evidence that war crimes have occurred, but do not reach the ICC’s standard for gravity. “Even where there is a reasonable basis to believe that a crime has been committed, this is not sufficient for the initiation of an investigation by the International Criminal Court,” wrote ICC Prosecutor Luis Moreno Ocampo when he declined to file charges against coalition forces for war crimes committed in Iraq. “While, in a general sense, any crime within the jurisdiction of the Court is ‘grave,’ the [Rome] Statute requires an additional threshold of gravity even where the subject-matter jurisdiction is satisfied. This assessment is necessary as the Court is faced with multiple situations involving hundreds or thousands of crimes and must select situations” in which the commission of said war crimes are “committed as a part of a plan or policy or as part of a large-scale commission of such crimes.”
Migrants’ plight in Mexico might be one of the complaint’s more compelling aspects for the ICC because the crimes committed against them are so widespread. Germán Guillermo Ramírez Garduaza, who runs the “Santa Faustina Kowalska” Migrante Shelter in Coatzacoalcos, Veracruz, estimates that 80% of the Centeral American women who pass through his shelter have been raped during their journey. “They consider rape to be part of the price they pay to migrate,” explains Fermina Rodriguez of the Fray Matias de Cordova Human Rights Center in Chiapas.
The Mexican government’s National Human Rights Commission (CNDH) documented 214 cases of mass kidnappings of migrants in 2010 alone, with a total of 11,333 victims. This number does not include unreported mass kidnappings, nor does it include kidnappings of small numbers of migrants, meaning that the total number of Central American migrants kidnapped in Mexico is likely much higher.
Sandoval hopes that the staggering statistics of over 50,000 dead, thousands of forced disappearances, at least 230,000 displaced persons, and the appearance of severely mutilated bodies left on public display in various parts of the country on a daily basis will convince the court that high-ranking government officials and drug trafficking organizations are committing war crimes in Mexico “on a massive scale.”
Goals of an ICC Investigation
Unlike the Inter-American Court of Human Rights (IACtHR), which allows victims to sue State parties over a range of human rights violations, the ICC prosecutes individuals—not States—who are allegedly responsible for a very limited range of war crimes and/or crimes against humanity. Whereas the IACtHR has the power to order States to reform laws or policies that prevent victims from obtaining justice, the ICC only seeks punitive damages, such as imprisonment or indemnity for victims.
Nonetheless, Sandoval believes that an ICC investigation could have important political implications in Mexico. He hopes that the ICC’s Office of the Prosecutor will be able to obtain confidential information regarding the military’s role in the drug war because the Mexican military has denied many Transparency Act requests on the basis of national security. “On May 9, 2007, [Calderón] published an executive order to create an elite force called the Cuerpo de Fuerzas de Apoyo Federal [Federal Support Forces],” explained Sandoval. “This elite unit is directly controlled by Felipe Calderón and was involved in the drug war… There is no General or other official between Calderón and those soldiers.” Sandoval hopes that the Office of the Prosecutor will investigate the secretive Federal Support Forces for any possible human rights abuses, because domestic attempts to obtain information about their actions have been futile. If the ICC finds that the elite unit is responsible for human rights abuses, Sandoval argues that it can hold Calderón directly responsible for their actions.
Due to the corruption and complicity with organized crime that prevails in Mexico’s security institutions, many victims never report crimes for fear of retaliation. Mexico’s Census Bureau (INEGI) reports that in 2010, 24 percent of the Mexican population reported being the victim of a crime. However, only 12.3 percent of them reported the crimes to the police. Of those crimes that were reported to the police, the police only investigated eight percent.
“Mexico is a country of impunity,” argues John Ackerman, a legal scholar with the National Autonomous University of Mexico’s Legal Investigations Institute. Ackerman says that bringing a case before the ICC is a way for citizens “to use legal, peaceful means to demand justice and accountability.”
Sandoval hopes that the ICC will open offices in Mexico to carry out a direct and impartial investigation into possible war crimes. “The ICC should open field offices in different parts of the country so that victims can go there and give direct testimony.”
Even though ICC investigations can drag on for years, Sandoval hopes that the complaint will pressure Mexican politicians to reform the country’s security strategy soon. “The candidates who will compete in the 2012 presidential election should know that if they continue with a militaristic policy that covers up soldiers’ crimes, they will share Calderón’s fate,” said Sandoval. “One would hope that they would begin to discuss a plan for the military to return to its barracks, and embark on a new strategy for confronting organized crime.”
Kristin Bricker is a Mexico-based freelance journalist who specializes in militarization, human rights, social movements and the drug war in Latin America.