Mexico’s Amnesty Proposal: An Instrument of Transitional Justice?

As violence in Mexico reaches record highs, President Andrés Manuel López Obrador has proposed an amnesty law aimed at benefiting individuals accused of involvement in the country’s drug trade. If adopted, the government’s proposal to offer leniency to cartel foot soldiers would represent a step forward in liberalizing the country’s punitive drug policy and, most importantly, in acknowledging the social dimension of the structural violence. It also signals a shift in strategy since, until now, the full spectrum of drug-related crime has been treated almost exclusively as a security threat. However, the draft law is much too limited to make an impact so long as comprehensive transitional justice measures are not in place. To fulfill its transformative potential, the proposal should be streamlined with new and existing restorative mechanisms that protect the rights of victims to truth, access to justice and reparation, and broaden its pool of beneficiaries. Moreover, the government should seriously examine ways of rehabilitating those who have resorted to violence, an issue it has long sidestepped. If these shortcomings are not remedied, Mexico’s bloodshed might continue unabated.

The urgency for a comprehensive response from the government to the endemic violence cannot be understated: in 2019, a record 34,582 persons were murdered in Mexico, according to the official count. This number surpasses the 33,743 homicides registered in 2018, which, until then, had been the most violent year on record since the “war on drugs” was launched by former Mexican President Felipe Calderón in 2006. Since then, almost 60,000 persons have gone missing or have been forcibly disappeared, a horrifying figure that was recently disclosed by the government, and millions have been internally displaced in fleeing the criminal onslaught.

These grim statistics have led some experts to suggest that Mexico is undergoing a non-international armed conflict where international humanitarian law should apply. The intensity of the violence and the militia-like organization of the cartels are often cited to support this claim. Others have concluded that crimes against humanity are being committed by state and non-state actors, and point to the inability of the government to deal with the fallout. The desirability of applying international humanitarian law to the situation in Mexico has also been invoked to criticize the Mexican army and its allegedly indiscriminate operations across the country. But excessive focus on the government’s militarized response misses an important point: 77 percent of violence in Mexico involves cartels targeting civilians, whereas confrontations between State forces and armed groups only accounts for 15 percent of incidents, according to a recent report.

These patterns of criminality have thus far been addressed by a national search committee for disappeared persons, an executive commission for victims, and previously established mechanisms for the protection of human rights defenders, journalists and women. According to Mexico’s interior ministry, these institutions are part of a broader transitional justice strategy. However, their piecemeal adoption has led critics to point out that these measures are devoid of the strategic, material and human resources that are necessary to address the overall magnitude of the crisis. Indeed, the government has yet to put forward a nationwide policy on truth, justice and reparations that answers to the violence arising from the systemic criminality of cartels that is often compounded with the breakdown of state authority. It is precisely this combination of weak governmental institutions with the unbridled influence of organized crime that has made the situation in many parts of Mexico particularly lethal. The amnesty should therefore be accompanied by a national truth commission that enables both state and non-state actors to contribute to fact-finding when serious human rights violations are involved. Such a measure would restore confidence in the authorities, and pave the way toward reducing Mexico’s yawning impunity gap.

The amnesty proposed by López Obrador, which is currently under consideration by the Mexican Senate, would benefit individuals convicted of theft and minor crimes related to drug trafficking and narcotics possession. The measures are aimed at small-time dealers and users who, because of their social vulnerability, are more likely to become entrapped by addictions and their attendant cycles of violence. The amnesty, therefore, singles out indigenous peoples, women and young persons as its main addressees, especially if they commit crimes under duress or if they live in extreme poverty. Excluded are repeat offenders and those accused of serious crimes, such as murder, kidnapping and enforced disappearances. It is also hoped that the amnesty will provide redress to convicts whose due process guarantees have not been safeguarded: adequate state-appointed counsel is sometimes lacking and assistance is often unavailable for persons unable to read, write, or speak Spanish. The amnesty’s provision on abortion—an important regional issue of late—is also notable: it extinguishes the criminal responsibility of women undergoing the procedure, as well as those performing it.

Another interesting aspect of the amnesty is its incorporation of sedition, which Mexican federal law defines as attacking or resisting the public authorities in a manner that prevents them from discharging their functions. This definition, which excludes armed action, may extend the scope of the amnesty beyond drug users and dealers. Its incorporation to the amnesty suggests the possible exculpation of mid-level cartel affiliates not involved in violent acts, and corrupt state officials not complicit in the commission of grave crimes. These individuals are likely to hold valuable information as regards the organizational and operational aspects of Mexico’s sophisticated criminal entities. However, the provision fails to include any conditions that would compel beneficiaries of the amnesty to assist in fact-finding and the establishment of the truth in regard to their criminal activities, or that of their accomplices.

Amnesties occupy a complex position in international law. On the one hand, the jurisprudence of the Inter-American Court of Human Rights, whose decisions are binding on Mexico, prohibits amnesties for persons responsible for torture, enforced disappearance and serious human rights violations. The Inter-American Court has hinted that a state’s adoption of amnesties in response to the commission of mass crimes will pass muster only if it excludes war crimes and crimes against humanity from their scope, as well as torture and enforced disappearances. Access to justice for victims must also be ensured, along with the right to reparations and guarantees of non-repetition. This opens the door for so-called “limited” amnesties covering individuals responsible for minor offences, be they members of government or non-state entities. Although the Inter-American Court has not explicitly articulated this itself, Judge Diego García-Sayán has stated as much in his concurring opinion in El Mozote (2016). In this case, he indicated that amnesties dealing with the aftermath of a non-international armed conflict cannot be equated to the self-exculpating amnesties enacted by dictatorial regimes. He also noted the need to balance the achievement of national reconciliation and an end to hostilities, on the one hand, with the duty to investigate, punish and repair gross human rights violations, on the other.

These elements were included in the Colombian amnesty law of 2016, which, in addition, emphasized the right to truth by requiring former fighters to testify about their crimes as a precondition for benefiting from the amnesty. Under international humanitarian law—and specifically Article 6.5 of Additional Protocol II, which governs non-international armed conflicts—amnesties are encouraged for persons who might be detained or prosecuted solely for having participated in the conflict. State practice and the International Committee of the Red Cross have confirmed that this provision excludes persons suspected of genocide, war crimes and crimes against humanity from its scope.

International human rights law and humanitarian law, however, do not necessarily regulate the kind of amnesty contemplated in Mexico, which, in addition to excluding aggravated crimes from its scope, reflects a liberalizing drug policy, and recognizes that many individuals caught up in the drug trade occupy marginal positions in society that render them easily exploitable or vulnerable to addiction. Indeed, such an amnesty would arguably reflect a more rehabilitative approach to criminal law, which would be consistent with international human rights law. Article 10 of the International Covenant on Civil and Political Rights, for example, obliges states to make rehabilitation a core principle of their criminal justice system.

If this amnesty is going to have a real impact on Mexico’s systemic violence, however, it should be accompanied by transitional justice measures that acknowledge and identify instances of mass violence and state failure, foster reconciliation and social reintegration, and make reparations to victims. These mechanisms must include independent fact-finding commissions and access to justice procedures, which the current government has adopted either reluctantly or implements only for emblematic cases such as the Ayotzinapa tragedy. One particularly worrisome aspect of the proposed Mexican amnesty law is its disregard for victims’ rights, specifically as regards the right to truth. This should be safeguarded by conditioning the concession of amnesties or any other alternative punishment to the obligation to testify about any crimes committed.

Additionally, focusing on low-level participants alone may be insufficient. Given the disproportionate role that the cartels have in inflicting harm, their reintegration into society must be a priority. Alongside efforts to rein in the army, the government should also concentrate on the disarmament, demobilization and rehabilitation of cartel members who have previously used violence. Many have long rejected this option, but in light of the ruthless attacks meted out to civilians, its consideration might become a necessity. Short of offering violent criminals blanket amnesties, however, the government should consider the reduction of sentences, alternative punishments, and direct reparations from perpetrators to victims. Since the Mexican military and security forces are, in effect, confronting several armed groups simultaneously, this might call for differentiated levels of engagement. The establishment of truth-seeking mechanisms to which former gang members could contribute would start a process that leads to their demobilization and reintegration.

Finally, amnesty laws will need to be enacted by Mexico’s 32 state legislatures for the measure to have a meaningful impact. This is because the legislative authority of the Mexican Congress extends only to federal crimes, whereas state laws also sanction drug-related offenses pursuant to their own criminal codes. That all Mexican states adopt their own amnesty laws is therefore essential, given that only 6,200 people held in federal prisons are eligible for amnesties pursuant to the current proposal, according to Mexico’s interior minister, whereas 100,000 people are serving time in state prisons for small-time drug trafficking.

The proposed new amnesty law may help erase the social stigmas associated with drug consumption and begin a national reconciliation process. To achieve more lofty aims, however, the current text should incorporate elements drawn from the field of transitional justice. A long-term reduction of violence will hold only if victims have genuine access to remedies, and if former criminals are offered a meaningful re-entry to society.

Image: Relatives of missing people take part in a massive protest against violence, crime and the disappearance of people, in Guadalajara, Jalisco State, Mexico, on May 4, 2018. Photo by ULISES RUIZ/AFP via Getty Images

 

About the Author(s)

León Castellanos-Jankiewicz

Researcher at the Asser Institute for International and European Law, The Hague. Follow her on Twitter (@leoncastjan).