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I. Introduction
Latin America, and therefore Mexico, has been historically associated with the use of forced disappearances as a generalized State policy and terror tactics, but it is also the place where efficient responses to overcome such heinous crimes have emerged.1 The use of forced disappearance as a tool for political repression in Mexico can be traced back to the 1970s in the context of the so-called “Dirty War”.2 While it is true that forced disappearances have been traditionally used as a strategy against subversive groups or “terrorists”, it is also true that they are now being used in other contexts like those involving organized criminal groups or human mobility and human trafficking, which require a renewed scope of action.3 This renewed scope of action is the one that must be taken into account in Mexico’s situation, where “[c]riminal cartels […] often with the collusion of corrupt government officials, engage in kidnappings for ransom, abductions for purposes of forced labor, and human trafficking related to the sex trade.”4
Since its first judgment on the merits regarding the crime of the forced disappearance of Manfredo Velásquez Rodríguez,5 the Inter-American Court of Human Rights announced the States’ obligation to “prevent, investigate and punish any violation of the rights recognized by the [American Convention on Human Rights] and, moreover, if possible, attempt to restore the right violated and provide compensation as warranted for damages resulting from the violation.”6
On October 12, 2017, the Mexican Chamber of Deputies approved a decree that created the General Law on the Forced Disappearance of Persons, Disappearances Committed by Individuals and the National Missing Persons System (“the General Law”).7 The Chamber of Deputies submitted the General Law to the President, who in turn enacted it on November 16, 2017. After being published in the “Diario Oficial de la Federación” [Federal Official Gazette], the General Law came into effect 60 days later, that is to say, January 18, 2018.8
The approval and enactment of the General Law constitutes a step toward ensuring the free and full enjoyment of human rights of victims of forced disappearance and their next of kin, according to the international human rights standards concerning forced disappearances. In particular, the General Law introduces and modifies institutions, procedures and guidelines that contribute to ensuring the rights to justice, truth and reparation. However, further amendments are needed for the General Law to fully comply with international human rights standards. Moreover, the correct and effective implementation of the General Law requires strong political will and sufficient material and human resources from the three levels of government.
In order to establish such an assessment, the General Law is evaluated under the scope of the established international obligations, especially but not restrictively, in the Inter-American Convention on the Forced Disappearance of Persons,9 the International Convention for the Protection of All Persons from Forced Disappearance,10 the judgment of the Inter-American Court in the Radilla Pacheco Case,11 the recommendations issued to Mexico by the United Nations Committee and Working Group on Forced or Involuntary Disappearances,12 and the precedents of the Inter-American Commission on Human Rights.13
The second section briefly refers to the history of some international human rights instruments that regulate the crime of forced disappearance applicable to Mexico. The third section discusses the national legal and political context surrounding the approval and enactment of the General Law. Section four assesses Mexico’s obligation to typify the crime of forced disappearance in criminal law. The fifth section discusses and analyzes the duty to investigate forced disappearances under the provisions of the General Law. The next section addresses several amendments made to laws and the creation or adjustment of the procedures and institutions used to ensure the right to know the whereabouts or fate of disappeared or missing persons. Finally, section seven refers to the rights of the victims of forced disappearance and their next of kin as recognized in the General Law.
II. International Human Rights Law Precedents Concerning the Crime of Forced Disappearance Applicable to Mexico
In 1993 the UN General Assembly adopted the Declaration on the Protection of All Persons from Forced Disappearance, proclaiming it as a “body of principles for all States”, and urging them to make all efforts so that the Declaration becomes “generally known and respected.”14 Article 3 of the Declaration establishes “a broad obligation” to prevent and terminate acts of forced disappearance through the adoption and implementation of effective legislative, administrative, judicial, and other measures; the suitability of these measures will be reflected in their effectiveness “in preventing and, as appropriate, terminating acts of forced disappearance.”15 Even when the Declaration did not provide a concrete definition of the term “forced disappearance”, its elements were already present in the General Assembly’s concern:
[…]in the sense that persons are arrested, detained or abducted against their will or otherwise deprived of their liberty by officials of different branches or levels of Government, or by organized groups or private individuals acting on behalf of, or with the support, direct or indirect, consent or acquiescence of the Government, followed by a refusal to disclose the fate or whereabouts of the persons concerned or a refusal to acknowledge the deprivation of their liberty, which places such persons outside the protection of the law […]16
After the Declaration was made, the Inter-American Convention on Forced Disappearance of Persons (hereinafter “CFD”) was adopted and defined “forced disappearance”17 as:
[T]he act of depriving a person or persons of his or their freedom, in whatever way, perpetrated by agents of the state or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by the absence of information or a refusal to acknowledge that deprivation of freedom or to give information on the whereabouts of that person, thereby impeding his or her recourse to the applicable legal remedies and procedural guarantees.18
Mexico became a party to the CFD in 2002.19 The International Convention for the Protection of All Persons from Forced Disappearance (hereinafter “CED”) was adopted by the United Nations General Assembly in 2006 and Mexico became a party in 2008.20 Article 2 of the CED defines forced disappearance as:
[…]the arrest, detention, abduction or any form of deprivation of liberty by agents of the State or by persons or group of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law.
On November 23, 2009, the Inter-American Court declared Mexico responsible for the forced disappearance of Rosendo Radilla Pacheco at the hands of the security forces in 1974 within the context of the “Dirty War”.21 Seven years later, on November 2016, the Inter-American Commission sub-mitted to the Inter-American Court the Case 12.916, regarding the forced disappearance of Nitza Paola Alvarado Espinoza, José Ángel Alvarado Herrera, and Rocío Irene Alvarado Reyes “at the hands of State agents […], since December 29, 2009. The fate or whereabouts of the three missing victims are still unknown.” The Commission recalled that “[t]his is the first case [brought before the Court] concerning forced disappearance in the context of the fight against drug trafficking and organized crime in Mexico.”22
It is worth mentioning, that even when Mexico’s international obligations on matters of forced disappearances came years before the Radilla Pacheco judgment, with the ratification of the abovementioned international treaties and conventions, among others, it was not until this judgment that Mexican authorities, starting with the Supreme Court of Justice, began paying attention to the fact that Inter-American Court judgments were mandatory.23
Since then, the judiciary’s criteria has evolved and developed on the issue; however, due to the scope limitation of this work, that development will not be specifically addressed here.
III. General Law on the Forced Disappearance of Persons, Disappearances Committed by Individuals and the National Missing Persons System
In 2015 the Mexican Constitution was amended to allow the Congress to enact general laws that establish, at least, the crimes and sanctions of kidnapping, forced disappearance or other kinds of illegal deprivation of freedom, human trafficking, torture and other cruel, inhuman or degrading treatment, as well as electoral crimes; a 180-day term was given to the Congress for it to issue the correspondent laws, a term which expired on January 6, 2016.24
A year later, the General Law on the Forced Disappearance of Persons, Disappearances Committed by Individuals and the National Missing Persons System was published. The International Committee of the Red Cross and the Office of the United Nations High Commissioner for Human Rights in Mexico recognized its importance.25
The enactment of the General Law responds to the intense activity and pressure from the civil society,26 and to the constant pronouncements issued by different international organizations like the Inter-American Commission on Human Rights (“the Commission”), the UN Committee on Forced Disappearances (“the Committee”), the UN General Assembly, and the UN Working Group on Forced or Involuntary Disappearances (“the Working Group”).27
IV. Typification of the Crime of Forced Disappearance in Criminal Law
International human rights standards forbid Mexico from practicing, permitting, or tolerating the forced disappearance of persons under any circumstances, and bind it to punish those persons who commit or attempt to commit such crime, including their accomplices and accessories, and if applicable, their superiors; such obligations are to be met through any necessary measure. In that order, as a legislative measure, Mexico is bound to define forced disappearances as an offence under its criminal law, in accordance to international human rights standards, and shall establish appropriate penalies proportionate to the “extreme seriousness” of the crime.28
Now, even when forced disappearances were considered crimes in the Federal Criminal Code29 and in some state criminal codes, it was typified differently, leading to contradictions and obstacles in prosecuting those responsible for committing the crime.30 Regarding the Federal Criminal Law, the Inter-American Court had already ordered Mexico to “adopt […] the appropriate legislative reforms in order to make Article 215 A […] compatible with the international standards in this subject” since “the elements of the crime shall guarantee the punishment of all the ‘authors, accomplices, and accessories […] whether agents of the State or ‘people or groups of people that act with the authorization, support, or acquiescence of the State.’”31
Besides the obligation to reform the typification of the crime of forced disappearance, the Working Group also recommended that it “should be included in the criminal codes of all states and that a comprehensive law on forced or involuntary disappearances should be adopted without delay.”32 In that sense, in order to overcome the obstacle presented by the multiple typifications of the crime of forced disappearance and considering that the effectivity of its investigation needs the regulation of such crime to be defined as an autonomous offence,33 the General Law now applies to the three Government levels (i.e. federal, state and municipal),34 is excluded under military jurisdiction,35 and defines the crime of forced disappearance as follows:
The crime of forced disappearance is committed when a public servant or the individual who, with authorization, support or acquiescence of a public servant, deprives a person of his or her liberty in any form, followed by the abstention or refusal to acknowledge such deprivation of liberty or to provide information related to the concerned person’s fate or whereabouts36 (Unofficial translation).
The General Law establishes sanctions from 40 to 60 years of imprisonment and fines from 10,000 to 20,000 daily salaries to the person responsable for committing the crime of forced disappearance, and when perpetrated by a public servant, it requires removal from office and a ban on future service.37
The penalties may be subject to aggravating38 or mitigating39 circumstances in accordance with international standards.40 The same sanctions apply to “the public servant or the individual who, with authorization, support or acquiescence of a public servant, conceals or refuses to provide information concerning the depravation of liberty or the whereabouts of a person, or conceals a detainee in any form […].”41
On the other hand, civil society organizations pointed out that the General Law refuses to establish criminal responsibility for hierarchical superiors as the masterminds behind the crime.42 The lack of investigation of hierarchical superiors as the masterminds of the crime (“cadena de mando”) prevents victims and society in general from knowing the circumstances of gross human rights violations committed by the military. It also prevents high rank officers and other civil public servants that request or allow military presence within their jurisdiction (i.e. municipalities or states), from being held accountable.43
The General Law provides for the responsibility of the hierarchical superiors “under the terms of the applicable criminal law”.44 However, it does not fulfill the premises provided by the CED in which superior officials should also be held criminally responsible, and which in its concluding observations the Committee had already noted.45 In referring to the “terms of applicable criminal law”, the General Law provides that hierarchical superiors may be responsible for the crime of forced disappearance due to omission in cases when he or she had the legal duty to prevent it, as is the case of any public servant.46 However, it does not expressly include situations in which the hierarchical superiors may be prosecuted and sanctioned as intellectual authors, in accordance with international standards.
Additionally, the General Law establishes different penalties for the person responsible for failing to deliver to the competent authority or the victim’s relatives a child born to the victim of forced disappearance during the period of captivity, and for the person who, with knowledge of the forced disappearance or disappearance committed by private individuals, retains or conceals the newborn.47 This typification complies with the recommendation issued by the Committee with this regard.48
According to Vélez Salas, distinguishing the crime of forced disappearance from other crimes related to the deprivation of liberty is crucial for the investigation and prosecution of forced disappearances, especially when the current situation in Mexico illustrates how many of these crimes, even when committed by private individuals, may entail the State’s responsibility due to omission.49
Moreover, the General Law also typifies the crime of disappearance committed by private individuals. Such crime is committed when private individuals (non-public servants) deprive a person of liberty for the purpose of concealing the victim, or his or her fate or whereabouts. Furthermore, the crime is punishable by imprisonment and a fine.50 The crime of disappearance committed by private individuals differs from that of forced disappearance “in that there is no certainty of the status of the perpetrator as a public servant, and until that status is determined, the charges are less severe […].”51
The General Law also typifies other acts linked to forced disappearance, such as: concealing, disposing of, incinerating, burying, disintegrating, or destroying the remains or the corpse of a person, in order to conceal the commission of a crime; a public servant’s preventing access to the authorities responsible for searching for missing persons, or obstructing said search; knowingly failing to provide information concerning the fate or whereabouts of a child born in captivity; falsifying, concealing or destroying documents proving the child’s identity or using falsified documents of a child born in captivity. Public servants are subject to administrative responsibility when unjustifiably failing to comply with their obligations as established in the General Law as long as that failure does not constitute a crime.52
Additionally, the approved decree contemplates the amendment and repeal of several provisions in the Federal Criminal Code, as well as to eliminate the 60-year imprisonment sanction limit for the crime of forced disappearance and transfer it to the General Law.53 Finally, it adds an article to the Federal Criminal Code that punishes the person responsible for concealing, disposing of, incinerating, burying, disintegrating, or destroying, totally or partially, the remains or corpse of an unidentified person, without consent from the competent authority with imprisonment and a fine.54
The establishment of a single definition of the crime of forced disappearance in a general law that applies to the three levels of government constitutes a great step forward in prosecuting this crime. However, Mexico still has to fill the gap between what is written in its laws and their actual enforcement. It must not be forgotten that despite the fact the General Law applies nation-wide, its enforcement will depend largely on state and municipal authorities (e.g. prosecutors, police officers, judges, magistrates, etc.) and on the local legal framework. In order to enforce these laws, material and human resources will be provided to the authorities in charge of investigating and prosecuting. On the other hand, even though the General Law applies nationwide, political will from states authorities is also needed and the mere publishing of the General Law cannot ensure that it will be forced.
Finally, further amendments to the General Law are needed in order to establish criminal responsibilities for hierarchical superiors as the masterminds of the crime of forced disappearance since, as it is now, it does not seem to be possible.
V. Duty to Investigate the Crime of Forced Disappearance
1. Exclusion of Military Jurisdiction
Article IX of the CFD establishes that the “[p]ersons alleged to be responsible for the acts constituting the offense of forced disappearance of persons may be tried only in the competent jurisdictions of ordinary law in each state, to the exclusion of all other special jurisdictions, particularly military jurisdictions. […].”
The first time the Inter-American Court addressed the issue of the matter of military jurisdiction in relation to human rights violations was in the Genie Lacayo Case in 1997.55 Since then, the Court has been constantly developing and modifying precedents on the matter.56
Moreover, in the 2009 Radilla Pacheco judgment, the Inter-American Court recalled its precedents in the sense that military criminal jurisdiction “shall have a restrictive and exceptional scope and be directed toward the protection of special juridical interests, related to the tasks characteristic of the military forces”, namely crimes or offenses committed by active soldiers that threaten juridical rights of the military order itself. Therefore, it is not the competent jurisdiction for human rights violations, which correspond to the ordinary justice system.57 Therefore, it ordered Mexico to reform Article 57 of the Code of Military Justice, which established, in its relevants parts, that “[t] he crimes against military discipline are […] those of the common or federal order, when […] committed by soldiers during times of duty or based on the actions of the same.”58
Two years after the judgment in the Radilla Pacheco Case, the Supreme Court of Justice in Mexico, applying the conventionality control between international human rights norms and domestic law, found that Article 57, Section II, paragraph e) of the Code of Military Justice was not in compliance with international human rights law and, therefore, should not be applied.59
On ratifying the CFD, the Mexican Government made express reservation to Article IX “inasmuch as the Political Constitution recognizes military jurisdiction when a member of the armed forces commits an illicit act while on duty,” stating that:
[m]ilitary jurisdiction does not constitute a special jurisdiction in the sense of the Convention given that according to […] the Mexican Constitution nobody may be deprived of his life, liberty, property, possessions, or rights except as a result of a trial before previously established courts in which due process is observed in accordance with laws promulgated prior to the fact.
The Government also made a declarative interpretation in the terms that “[the Convention] shall apply to acts constituting the forced disappearance of persons ordered, executed, or committed after the entry into force of [the] Convention.”60
On July 11, 2014, Mexico withdrew its reservation with the express welcoming of the Inter-American Commission.61 Previously, on June 13, 2014, the executive branch published a decree amending several provisions of the Code of Military Justice, including Article 57, establishing the ordinary jurisdiction for cases where the victim concerned is a civilian.62 This amendment was assessed by the Inter-American Court through its compliance monitoring supervision attribution in the Radilla Pacheco Case and two other cases against Mexico. The Court declared that it “constitutes an important alignment of Mexican domestic law with conventional and international standards relating to military criminal jurisdiction,” but that compliance was partial since the Military Code “still allows military jurisdiction for crimes committed by a military officer against another military officer.”63
A year after the amendment to Article 57, a federal court convicted a military officer of the crime of forced disappearance for the first time, imposing the penalty of 31 years in prison. The judge based his decision on the gross violation of the direct victim’s rights to personal integrity, personal liberty and life, as well as the suffering of the victim’s relatives and their right to the truth.64 Furthermore, by 2017, 545 members of the armed forces (502 from the Army, 32 from the Navy, and 11 from the Air Force) have been convicted or are being tried under the military jurisdiction, and sentenced to terms in military prison for committing or allegedly committing different crimes, including manslaughter, torture, forced disappearance, clandestine burial, and destruction of corpses; however, must of the military convicted or tried are from the lower military ranks.65
Removing cases concerning human rights violations from out of military jurisdiction has been a protracted struggle in Mexico. It has been more than seven years since the Radilla Pacheco case, and even when human rights violations, including forced disappearances, must now be tried in civil courts, the Military Penal Code needs to be further amended so that human rights violations, including forced disappearances, committed by military officers are also investigated and tried under civil jurisdiction.
If this is read bearing in mind that the General Law does not establish criminal responsibilities for hierarchical superiors as the masterminds of the crime of forced disappearance, the failure to amend the Military Penal Code proves the lack of political will to investigate, prosecute and convict military officers for the crime of forced disappearances. Finally, it seems that the draft legislation on internal security, which “would result in the normalization, regulation, and permanence of the armed forces in public security tasks” if approved, will constitute another obstacle to the prevailing impunity for agents of the armed forces involved in cases of human rights violations.66
2. Special Prosecutor’s Offices (“Fiscalías Especializadas”)
“Impunity arises from a failure by States to meet their obligations to investigate violations” and therefore States “shall undertake prompt, thorough, independent and impartial investigations […] and take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished.”67 The United Nations have recognized the “the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights.”68
Specifically, in the case of forced disappearances, the State is bound to ensure the right “to report the facts to the competent authorities, which shall examine the allegation promptly and impartially and, where necessary, un-dertake without delay a thorough and impartial investigation” even when there is no formal complaint.69
According to Open Societies, “official statistics on killings undercount the true toll: tens of thousands of disappearances, including those of migrants, remain unsolved and hundreds of clandestine and mass graves remain insufficiently investigated.”70 The Committee has also expressed its concern regarding “the impunity surrounding the numerous cases of forced disappearance reported, which is evidenced by the near zero level of convictions for the offence.”71 A Mexican representative stated before the Committee that “according to information available at the federal level, 313 officials had been indicted and 13 had been convicted to [2015].”72
As obstacles to the investigation of the crime of forced disappearance in Mexico, the Committee pointed at the lack of prompt and immediate investigations of cases of forced disappearance and the classification of such crimes as other offences. Moreover, it recommended that the State under-take “a thorough and impartial investigation without delay, even if there has been no formal complaint, and that the perpetrators are prosecuted and, if found guilty, are punished in accordance with the grave nature of their acts” encouraging and facilitating “the involvement of the relatives of the disappeared person in the investigations, without conferring upon them any responsibility for providing the evidence necessary for the investigation” and guaranteeing “effective coordination and cooperation between all agencies involved in the investigation”, which must ensure “that they have sufficient infra-structures and the technical, expert, financial and human resources to perform their functions expeditiously and effectively.”73
Due to limitations of length, the present work focuses only on the specific regulations provided by the General Law regarding the investigation, prosecution and punishment of the crimes typified in the law, and not on general criminal procedural rules applicable for every criminal procedure.
In this sense, the General Law characterizes the crime of forced disappearance as permanent or continuous,74 is not subject to a statute of limitations and shall be prosecuted “motu propio” until the whereabouts of the victim have been determined or the victim’s remains have been found.75 In addition, it forbids the temporary suspension of the investigation under any circumstances, or any measure of impunity76 in accordance with Articles VII and VIII of the CFD.
It is important to point out that the Basic Principles and Guidelines on the Right to a Remedy and Reparation forbid the application of statutes of limitations where so contained in international obligations or provided for in treaties.77 However, even when neither the CED78 nor the CFD79 absolutely prohibit such statues of limitations, the General Law establishes that prosecution and sanction of the crime of forced disappearance are imprescriptible and cannot be subject to any statute of limitation of any kind.80
On the other hand, the Committee encouraged Mexico “to consider establishing […] a prosecution unit specializing in the investigation of cases of forced disappearances […] to address this criminal scourge from a national and transnational perspective, supports the investigative function, and coordinates its work with other relevant agencies […].”81
In response to this recommendation, the General Law binds both federal and state prosecution offices to establish Special Prosecutor’s Offices (here-inafter “the Prosecutor’s Office(s)”) to investigate the crimes of forced disappearance and disappearance committed by private individuals.82
The federal Prosecutor’s Office is responsible for receiving any criminal complaint related to the crimes typified in the General Law and has jurisdiction over the crimes established in the General Law when: a federal public servant is involved (as a perpetrator or a victim); jurisdiction is conferred to it by another law; there is a ruling issued by an international organization declaring the Mexican State as the responsible party; the Federal Prosecutor takes charge of an investigation from a state Prosecutor’s Office; when the alleged perpetrator is a member of a criminal organization; or, when appropriate, the victims so request it. When none of the above circumstances applies, jurisdiction corresponds to state Prosecutor’s Offices.83
The federal and the state Prosecutor’s Offices should generate specific criteria and methodology to investigate and prosecute the crimes prescribed by the General Law, and liaise with other institutions (i.e. State SPOs, the National Missing Persons Commission and local commissions, the National Citizen Council, the federal and state Executive Committee for Victims Assistance, the Migrant External Support Mechanism and Crime Investigation Unit,84 police institutions, and other jurisdictional authorities) during the investigation of these crimes. Every authority from every government level, as well as individuals or organizations, are obliged to help and provide information to federal and state Prosecutor’s Offices.85
Moreover, the Prosecutor’s Offices must implement different measures to protect and assist the relatives searching their loved ones86 in accordance with Article 12.1 of the CED, which binds the State to take the appropriate steps in order to “to ensure that the complainant, witnesses, relatives of the disappeared person and their defense counsel, as well as persons participating in the investigation, are protected against all illtreatment or intimidation as a consequence of the complaint or any evidence given.”
More specifically, the federal Prosecutor’s Office can apply to the “competent jurisdictional authorities” for authorization to perform exhumations in places where there are reasons to believe that a missing or disappeared person’s remains might be buried. This Office is also in charge of locating the families of identified deceased persons so as to deliver the corpses or remains. Besides, it must facilitate the participation of family members in the investigation and periodically inform them of the progress made in the investigation.87
Finally, when the alleged perpetrator is a public servant, the federal Prosecution Office can apply to a judge to issue precautionary measures (e.g. suspension from office) in order to prevent his or her interference with the investigation88 as requested by Article 12 of the CED, which binds the States to “ensure in particular that persons suspected of having committed an offence of forced disappearance are not in a position to influence the progress of an investigation by means of pressure or acts of intimidation or reprisal aimed at the complainant, witnesses, relatives of the disappeared person or their defense counsel, or at persons participating in the investigation.”89
The effectiveness of the Prosecutor’s Offices will largely depend on their funding, the training of their public servants, and the coordination between them, as well as with other institutions. If states fail to achieve even a single one of the minimum standards set out in the General Law, it could create “safe havens” for those responsible for committing the crime of forced disap-pearances and will impede their proper prosecution and conviction.
VI. The Right to Know the Whereabouts or Fate of the Disappeared or Missing Persons
1. Search Request Procedure
In cases of forced disappearances “the family of the direct victim has an imprescriptible right to be informed of the fate and/or whereabouts of the disappeared person and, in the event of decease, that person’s body must be returned to the family as soon as it has been identified, regardless of whether the perpetrators have been identified or prosecuted.”90
In accordance with the aforementioned principle, the General Law recognizes that “[i]rrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims’ fate.”91 Such right involves the State’s duty to “take all appropriate measures to search for, locate and release disappeared persons and, in the evento of death, to locate, respect and return their remains.”92
In that sense, the Working Group recommended that Mexico implement a “national search programme for missing persons with an immediate action protocol” and the corresponding guidelines, and that a “specific procedure for finding the disappeared person with the assistance of the relatives of victims should be established.”93 This responds to the fact that “in cases of forced disappearance, the prompt and immediate action of physical and judicial authorities through the order of the timely and necessary measures addressed to the determination of the whereabouts of the victim is essential.”94
The General Law creates the National Missing Persons Commission (here-inafter “the National Commission”), which will function as an administrative body that determines, executes and follows up on search actions for missing and disappeared persons. All authorities are obliged to collaborate with the National Commission and every state must create a Local Missing Persons Commission with analogous functions.95
More than fifty responsibilities were given to the National Commission regarding missing or disappeared persons, including: to design public policies; to request action from different public agencies and other government authorities; to develop and present reports on the matter as well as diagnostics of the situation; to request information from different authorities; to access any authority’s information database platforms and registries without restrictions; to assist the victim’s family members in the search of their loved ones and in obtaining reparations; to determine, execute and follow-up on missing or disappeared search actions; to collaborate with prosecutors in the investigation of forced disappearances and their perpetrators; and to coordinate with civil society and national, international, and foreign authorities in the search of missing or disappeared persons.96
Also, the National Commission and the local commissions shall be conformed of, at least, a Specialized Search Group (“Grupo Especializado de Búsqueda”), a Context Analysis Area (“Area de Análisis de Contexto”), Information Management and Processing Area (“Área de Gestión y Procesamiento de Información”), and the necessary administrative staff.97
The National Commission and local commissions will be in charge of performing the search request procedure, which starts with an investigation that continues until the whereabouts or fate of a missing or disappeared person are known and, if the case, the remains are identified.98
Once the National Commission or local commission acknowledges the disappearance of a person, it must immediately register the received information in the National Registry of Disappeared or Missing Persons.99 This registry must be constantly updated and the commission is required to provide and obtain information from the missing or disappeared person’s family members. The National Commission must also start the search for the person and inform the Prosecutor’s Office if there is the possibility that a crime was committed, or if 72 hours have passed without news of the missing or disappeared person, or if the person is under 18 years of age.100
In order to find the person, the NCMP or the local commission must (with the prosecutors’ cooperation if necessary) periodically and exhaustively consult the databases and registries of public and private health clinics, detention centers, forensic medical institutions, the National Registry of Unidentified Deceased Persons, public and private shelters and other social assistance institutions, cemeteries (or any other public or private place, where human remains are deposited), migrant stations, transportation terminals, and other registries and databases. If the person is found dead, the criminal investigation should continue in order to identify, locate and punish those responsible. 101
The right of the direct victim’s next of kin to know the fate and/or whereabouts of the disappeared person and, in the event of decease, to reclaim the disappeared person’s remains has also been considered by doctrine and the Inter-American case law as one of the legal goods that should be protected by law.102 The General Law provides a decent framework to guarantee the abovementioned right; however, it should be pointed out that legally instituting the search request procedure, national and local commissions, and the registry will not succeed in its purposes without political will -or the corresponding resources.
2. The National Missing Persons System (“Sistema Nacional de Búsqueda de Personas”)
The General Law creates a National Missing Persons System (hereinafter “the System”), whose purpose is to design and assess State resources in order to define the general bases, public policies and procedures among the authorities at all government levels to search for, locate and identify victims of forced disappearance and missing persons, as well as to prevent the crimes related to the General Law. In the exercise of its functions, the System will have various tools, including the National Registry of Disappeared or Miss-ing Persons, the National Registry of Unidentified and Unclaimed Deceased Persons, the National Forensic Data Bank, the National Registry of Graves, the Administrative Detention Registry, the Standardized Search Protocol for Disappeared Persons and the Investigation of the Crime of Forced Disappearance, and the Amber Alert, among others.103
As mentioned before, the Working Group recommended that the “national search programme”, rendered as the search request procedure, should be accompanied by an immediate action protocol.104 In 2015 the Standardized Search Protocol for Disappeared Persons and the Investigation of the Crime of Forced Disappearance (“Protocolo Homologado para la Búsqueda de Personas Desaparecidas y la Investigación del Delito de Desaparición Forzada”) was approved and ratified by the National Security Council.105 The general objective of the protocol is to institute the principles and general procedures for the prosecutors, experts, and police forces in charge of the investigation of the crime of forced disappearance and thus make its investigation effective, locate the victims and sanction those responsible for the disappearance. It also establishes as a measure of non-recurrence.106
However, according to the General Law, the System is now in charge of issuing a Standardized Search Protocol for Disappeared and Missing Persons (“Protocolo Homologado para la Búsqueda de Personas Desaparecidas y No Localizadas”), which must include special procedures to search for and locate children and adolescents, migrants, or politically motivated disappearances.107
Moreover, the General Law establishes a National Citizen Council (“Consejo Nacional Ciudadano”), as a body made up of the victim’s family members, human rights specialists, and representatives of civil society human rights organizations that will act in an advisory capacity to the System and the National Commission in terms of the search for missing and disappeared persons.108
3. Registries and Data Banks
Several recommendations have been issued to Mexico by international organizations, regarding the establishment and maintenance of information databases that can help with the search of missing or forced disappeared persons.109 In this sense, the General Law modifies the National Registry of Disappeared or Missing Persons and creates the National Registry of Unidentified Deceased Persons and the National Forensic Data Bank.
First, the National Registry of Disappeared or Missing Persons aims to be an informational tool that organizes and concentrates information regarding missing or disappeared persons on a national database to help with the investigation, location and identification of missing or forced disappeared persons.110 Second, the National Registry of Unidentified and Unclaimed Deceased Persons, managed by the Office of the Federal Prosecutor and forming part of National Forensic Data Bank, contains updated forensic data on unidentified corpses or human remains, as well as information on the circumstances of their discovery.111 Finally, the National Forensic Data Bank is part of the System and concentrates and updates federal and state databases, in addition to other databases containing forensic and genetic information relevant to the search and identification of missing or disappeared persons.112
The three registries mentioned above are designed in such way that information is permanent, connected, and not duplicated, and allow the use of context analysis tools in order to determine crime patterns, modus operandi, criminological maps, and the structure and activities of organized criminal groups, among others. Furthermore, both the Federation and each state are obliged to, at least, have an Administrative Registry of Detentions and the National Registry of Graves.113
Apart from the criminal procedure and with all the tools established in the General Law for locating missing or disappeared persons, the search request procedure constitutes a big step forward in terms of the right to truth of the disappeared person’s next of kin. However, the authorities in charge of each procedure and the institutions created must efficiently coordinate their efforts and have enough resources to perform their duties properly. If one of those institutions fails, it would affect the whole process.
VII. The Rights of the Victims and their Next of Kin
1. Right to Full Reparation
It is worth recalling that the Working Group recommended that the definition of victim should be broad and “not linked to the establishment of the criminal liability and conviction of the accused.”114 In this sense, the General Law defines the victim’s next of kin as:
[t]hose who, under the terms of the applicable legislation, are related to the disappeared or missing person by consanguinity or affinity, in a direct ascending or descending line without degree limitation; in transversal line up to the fourth degree; the spouse, concubine or, as the case may be, those who are subject to regime of a domestic partnership or similar legal constructs. Like-wise, persons who are economically dependent on the disappeared or missing person and can demonstrate it before the competent authorities; […] (Unofficial translation).115
That said, “[a]ny human rights violation gives rise to a right to reparation on the part of the victim or his or her beneficiaries, implying a duty on the part of the State to make reparation and the possibility for the victim to seek redress from the perpetrator.”116 In cases of forced disappearance, the duty to repair is understood in the sense that “[l]egislation must provide that reparation should be proportional to the gravity of the violation and suffering of the victim and his or her family. Provision should be made for restitution, as and when possible, as well as for medical and psychosocial care, satisfaction, compensation and guarantees of non-repetition.”117
The CED also binds States, and therefore Mexico, to “ensure in its legal system that the victims of forced disappearance have the right to obtain reparation and prompt, fair and adequate compensation” that “covers material and moral damages and, where appropriate, other forms of reparation such as: [r]estitution; [r]ehabilitation; [s]atisfaction, including restoration of dignity and reputation; [g]uarantees of non-repetition.”118
Since 2013, the rights of the victims of federal crimes or human rights violations is specifically regulated in the General Law for Victims, which binds the three levels of government to ensure victims’ protection, and grant them restitution, rehabilitation, compensation, satisfaction and guarantees of non-repetition in its individual, collective, material, moral, and symbolic dimensions, considering the seriousness and magnitude of the violation and its specific characteristics.119 Due to limitations of length, the rights, institutions and procedures established in the General Law for Victims are not addressed in the present work. However, it is worth mentioning that the Committee pointed out that further efforts are needed to achieve its implementation.120
However, the General Law stresses that victims of forced disappearance and the other crimes established therein have the imprescriptible right to full reparation, under the terms of the abovementioned General Law for Victims.121 The General Law establishes that full reparation for victims of the crimes established in the law include, in addition to the provisions of the General Law for Victims, the Inter-American Court of Human Rights case law and International Law, measures of satisfaction (i.e. memorial monuments; a public apology from the State, the perpetrators of the crime and other persons involved; and the recovery of community meeting places; the recovery of the honor and memory of the disappeared person; and the recovery of practices and traditions that might have been lost due to a victimizing event); and guarantees of non-recurrence (e.g. temporary or definitive suspension of the public servants prosecuted or punished).122
Now, the General Law also recognizes the specific rights of both the direct victims of forced disappearance or disappearance committed by individuals,123 and their family members.124 The General Law also provides for preventive measures,125 notwithstanding the provisions of the General Law for the Social Prevention of Violence and Delinquency and the General Law of the National Public Security System, including the installation of security cameras in every official facility where there might be a person deprived of his or her freedom; the administration of statistical databases that include impact of the crimes, the circumstances, vulnerability groups, modus operandi, territorial delimitation, high risk routes and areas where the probability of such crimes are high; information campaigns; training for public servants officers on matters of human rights and forced disappearances.
The latter seems to be in accordance with international human rights standards.126 However, as stated in previous chapters, the effective implementation of the General Law depends on further actions and political will.
2. Special Declaration of Absence (“Declaración Especial de Ausencia”)
Article 24.6 of the CED establishes the State obligation to “take the appropriate steps with regard to the legal situation of the disappeared persons whose fate has not been clarified, and that of their relatives, in fields such as social welfare, financial matters, family law and property rights,” regardless of its duty to clarify the fate of the disappeared person.
In this sense, the Committee recommended Mexico to “take the necessary steps to ensure that legislation […] establishes a procedure for obtaining a declaration of absence due to forced disappearance in order to deal appropriately with the legal situation of disappeared persons whose fate has not been clarified and that of their families.”127
Accordingly, the General Law states that family members may ask the competent jurisdictional civil authorities for a special declaration of absence of the victim three months after the authority acknowledges having filed a report on the disappearance of a person, and the authority has six months to decide on said declaration.128 This declaration has only civil effects and therefore does not produce the effects of criminal statute of limitations or evidence in criminal proceedings, and neither does it stops the search of the disappeared person.129
The purpose of the declaration of absence is to recognize and protect legal personality of the disappeared person and to grant the proper measures to ensure the broadest possible protection to the family members of the disappeared person.130
The establishment of special declaration of absence allows the next of kin of the disappeared or missing person to safeguard their rights as long as his or her whereabouts are unknown. However, considering that only two states provide for such legal figure, and notwithstanding the fact that the General Law establishes a time limit for states to introduce this legal precept in their civil legislation, it will depend largely on the political will of state congresses.
In words of Verástegui González, the declaration of absence would allow the victim, in the event of being found alive, to find similar circumstances with regards to, among other issues, his or her family, job, and property as they were before his or her disappearance. Verástegui González states that the declaration of absence aims to “freeze” the rights and duties of the victim until he or she is found alive, thus materializing the presumption of life.131
Besides, the General Law’s express reference to Inter-American Court judgments on matters of reparations, it broadens the scope of possibilities and options for the next of kin of the disappeared or missing person to have a way to be redressed for the violations committed against them and their loved ones, if it is possible to speak of reparation in the case of such an abhorrent crime.
VIII. Conclusion
The enactment of the General Law is only the first step to prevent the crime of forced disappearances and to investigate, prosecute, and, if applicable, punish those responsible for committing the crime, and grant adequate and full reparation for the victims and their next of kin.
As a legislative measure, the General Law is, to a large extent, in accordance with international human rights standards on the issue. However, the partial compliance with the ruling in the Radilla Pacheco case with regards to military jurisdiction, as well as a lack of clear laws on the responsibility of hierarchal superiors as the masterminds of the crime of forced disappearance, suggest that future amendments to either the General Law or criminal laws are required in order to comply with international standards.
Furthermore, even when the General Law constitutes a significant first step by establishing several different institutions, registries, procedures, and mechanisms that involve not only the federal jurisdiction, but state and municipality jurisdictions as well, enormous political will is needed to provide these new institutions with enough resources (material and human) to achieve the purpose aimed by the law. Political will is also needed to establish the coordination between different authorities and institutions, as stipulated in the General Law as a requirement for its effective implementation.
Along this line, during the enactment ceremony of the General Law, Jan Jařab, a representative of the United Nations Office of the High Commissioner for Human Rights in Mexico, recalled that “it was an international organization132 the first to recommend the adoption of a general law on forced disappearances after an official visit to Mexico in 2011” and that even though it is not the solution, it is part of one if implemented effectively. He pointed out that the General Law aspires to overcome existing impunity and revictimization patterns and that it adopts the highest international human rights standards.133
Also, as the “Movimiento por Nuestros Desaparecidos en México”134 remarked, it is imperative that the establishment of the institutions created by the General Law is followed by the necessary budget, the participation of the victim’s family members, and other legislative amendments.135 The Nine-teenth Transitory Article provides that the Federal Administration and state legislatures must establish the necessary budget for the implementation of the General Law.136 In the 2018 Expenses Budget, the amount of $186,354,100 (approximately 9,900,000 US dollars) was designated for the implementation of the General Law and $282,592,800 (approximately 15,023,859 US dollars) was earmarked as a subsidy for states to implement the General Law.137
The General Law stipulates different terms under which the institutions created shall be established and for the correspondent authorities to make the necessary amendments to their legal framework, to issue guidelines, rules, programs, and protocols, and to take any necessary measures in order to adapt their activities to the regulations established in the General Law.138
At this time, it is too soon to determine whether the General Law will, in fact, substantively contribute to eliminating or lowering the high levels of impunity surrounding the crime of forced disappearance and the outrageous number of missing or disappeared persons in Mexico. As a legislative measure, it corresponds to the most international human rights standards in matters of forced disappearances. However, it is reiterated, its effectiveness will depend largely on the political will of the federal and state authorities in charge of implementing, establishing, training, and coordinating the different operators and institutions needed for the proper implementation of the General Law at all government levels.
The situation of forced disappearance has reached a critical point in recent years where neither the government nor society as a whole can deny its impact. It is incontrovertible that the enactment of the General Law, as a legislative measure aimed to ensure and fulfil the rights of justice, truth and reparation of the victims of forced disappearance and their next of kin is an action without precedent, thanks primarily, to the lifelong fight of those whose lives have placed them in one of the worst situations a person can ever find themselves, not knowing the fate of their loved ones.
