Information commissioners must determine whether migrant killings violated human rights
Judge says right to information is a “human right” that supersedes “disproportional” application of exemption pertaining to legal investigations
This post was co-authored by Michael Evans and Jesse Franzblau and published by Animal Politico in Mexico
In a case that has important ramifications both for access to information and for human rights investigations in Mexico, a federal judge declared last week that the country’s information commissioners can and should determine whether an infamous 2010 massacre of 72 migrants in Tamaulipas state by alleged agents of the Zetas drug cartel might constitute a grave violation of human rights under established international legal norms. If so, plaintiffs argue, the Attorney General of Mexico (PGR) must release an unclassified version of its investigative file on the massacre in accordance with Mexico’s access law, which prohibits the withholding of records relating to grave violations of human rights or humanitarian law.
The commissioners from Mexico’s Federal Institute for Access to Information (IFAI) have until now resisted efforts by civil society groups, led by Article 19 in Mexico, to force the oversight body to make such a determination. In September 2013, IFAI ruled that it “did not have the faculty, capacity, expertise, knowledge, or the personnel to investigate and determine the existences of grave human rights violations or crimes against humanity” with respect to the San Fernando killings (see Article 19 press release). Absent an official determination that the massacre constituted a violation of human rights, IFAI claimed it could not invoke the clause in Article 14 of Mexico’s transparency law that mandates disclosure of otherwise protected documents when they relate to such violations. The commissioners thus rejected the appeal from Article 19, and refused to order PGR to release its investigative files on the San Fernando case (see previous posts on IFAI September 2013 ruling).
Article 19 appealed that decision, and the recent ruling found that IFAI is in fact capable of interpreting the law to determine if the massacre could constitute a grave violation of human rights based on the criteria set by Mexico’s Supreme Court and the Inter-American Human Rights Court (see Article 19 press release). The judge also found that IFAI’s September 2013 decision—that the human rights nature of the case must be determined by another authority before IFAI can rule on the opening of related documents–was itself a violation of citizens’ right to information.
In a remarkable passage from the court’s ruling, the judge found that the PGR’s decision to withhold information pertaining to its “preliminary investigation” of the massacre – a determination that was approved by IFAI – is “disproportional” and “violates the human right of access to information.”
The ruling orders IFAI to take another look at the San Fernando case, to determine if the killings might reasonably constitute grave human rights violations under guidelines clearly defined by the court, and if so, to order the Attorney General to release the public version of its investigative file.
A strategic right to truth campaign
If upheld, the court’s ruling would be an enormous victory for human rights defenders and transparency advocates in Mexico and could have a transformative impact on the efficacy of using the Mexican access law to investigate violations of international human rights norms.
Through Migration Declassified, the National Security Archive continues to support the campaign launched last year by Article 19 and the rest of our partner organizations to promote the right to the truth with respect to the San Fernando case. The case is part of a coordinated campaign, involving transparency activists and migrant rights defenders in the U.S. and Mexico, all working to push back the veil of secrecy surrounding violence against migrants.
Nearly four years later, the federal and state agencies responsible for investigating the case appear unwilling, or incapable, of fully investigating the massacre. Surviving family members of massacre victims were incensed when Mexico’s National Human Rights Commission (CNDH), in its formal report on the case, declined to say whether the acts constituted grave violations of human rights. Family members of the victims, along with the Fundación para la Justicia (FJEDD) have now taken legal action against the CNDH and are challenging the unassailability of the commission’s rulings (see previous post on legal challenge against CNDH). The complaint argues that CNDH, the agency charged with the protection and defense of human rights in Mexico, did not fully investigate the case, did not solicit the views of victims and family members or respect their right to justice, and ultimately failed to determine whether the state was involved in the killings either through omission or direct action.
In consultation with these organizations, Migration Declassified has been engaged in a strategic effort to gain access to official government files with important information on abuses against migrants, and information on the San Fernando massacre is central to this effort. Using access to information laws in both countries, the strategy seeks to push U.S. and Mexican government agencies to disclose classified information essential to the defense of migrant rights on both sides of the border. The scale and the circumstances surrounding the San Fernando massacre, which was followed, the next year, by the discovery of hundreds more bodies in mass graves, makes the case emblematic of the horrors and abuses faced by migrants traveling through Mexico.
The strategy has resulted in the declassification of U.S. diplomatic cables and intelligence reports in support of both of these legal challenges. First published in August 2013, these records reflect U.S. concern that, despite prior knowledge, Mexican authorities did little to prevent cartel-related violence against migrants and deliberately downplayed the state’s responsibility for the massacres in San Fernando (see previous post on U.S. files). One U.S. Embassy Mexico cable sent to Washington just a few months before the massacre observed a state of “near total impunity” for Mexican cartels in the face of compromised security forces. Four years later, a culture of impunity remains.
The declassified U.S. files also provide details on the arrest of San Fernando police officials and suspected Zeta members in the wake of the massacre, including U.S. Drug Enforcement Agency (DEA) files on the arrest of Zeta leaders in April 2011. The DEA documents indicate that U.S. agencies are willing to release information that could be considered sensitive to law enforcement and investigative proceedings, paving the way for Mexico’s Attorney General’s office to release its investigative files on the case.
On the Mexican side, the strategy has produced a set of internal records from Mexico’s National Migration Institute (INM) relating to migrant protection programs implemented in the wake of the San Fernando massacre, including the creation of Migrant Protection Groups in July 2011 for deployment to dangerous migration routes (see INM documents released in FOI case 0411100064213). In one of our more recent cases, IFAI ordered INM to locate records in response to our requests for documents relating to the May 2011 firing of INM officials under allegations of involvement in abuses against migrants (see IFAI Resolution 5361/13, request # 0411100075613).
IFAI now holds the key to unlocking the case files behind a criminal investigation that has failed to produce a single conviction for the most shocking mass murder that Mexico has seen in a generation. Soon after the April 2011 discovery of bodies of the victims in mass graves in San Fernando, the Inter-American Human Rights Commission (IACHR) urged the “State of Mexico to maximize its efforts to ensure that such crimes do not happen again, to determine the victims’ identities, and to investigate, prosecute, and punish the perpetrators and masterminds, whether this is a case involving organized crime or State agents in collusion with organized crime” (see IACHR press release, April 2011). After nearly four years Mexico has failed every one of these tests. It will now be up to IFAI to determine whether the families of the San Fernando victims have the right to know why.