In 2015, the United Nations Committee on Enforced Disappearances released a report on Mexico, concluding that there is a generalized context of disappearances in the country, many of which would meet the legal definition of enforced disappearance. Despite the recurring pattern of mass disappearances throughout the country in the last decade, including the recent disappearance of forty-three students in Iguala, Mexico has not convicted a single person for an enforced disappearance committed after 2006. Equally appalling is the fact that 40 percent of missing person cases in the country never get opened. Mexico has begun a process of reforming its criminal justice system, but a lack of marked progress has largely prevented the country from adequately addressing this impunity.
This Article will argue in favor of pursuing an investigation at the International Criminal Court (ICC). It will demonstrate that, if the Office of the Prosecutor (OTP) were to open a preliminary examination in Mexico, the OTP would likely decide to initiate an investigation, even if enforced disappearance were the only crime considered. It will further argue that pursuing an investigation would likely contribute to Mexico's reform process through the OTP's use of positive complementarity, a strategy by which the OTP supplements ongoing domestic criminal proceedings in order to help ensure effective investigations and prosecutions. Not only could the OTP use the threat of opening an investigation to pressure Mexican authorities to enact reform but it could also adopt proactive measures to help accelerate that progress. This Article will propose three innovative measures that the OTP could use in Mexico as part of its positive complementarity strategy to bring Mexico closer to confronting its enforced disappearance monsters.
TABLE OF CONTENTS I. INTRODUCTION A. Iguala B. Legal Reform as the Response to Iguala C. The Purpose of this Article D. The Structure of this Article II. THE RISE OF THE ENFORCED DISAPPEARANCE EPIDEMIC A. The Drug "War" B. The Emergence of Enforced Disappearances as a Byproduct C. The (Un)Known Facts about Enforced Disappearance in Mexico III. THE ENDURING IMPUNITY AND ITS IMPACT ON TRUST A. Some Progress: Mexico's Criminal Justice Reform Efforts B. Mexico's Continued Impunity towards Enforced Disappearances and the Roots Thereof C. The Overall Climate of Impunity and the Broader Deficiencies in the Mexican Criminal Justice System D. The Resulting Lack of Confidence in the Domestic Criminal Justice System IV. THE THREAT IS REAL: THE HIGH LIKELIHOOD OF THE OTP OPENING AN ICC INVESTIGATION A. Temporal, Territorial, and Personal Jurisdiction B. Material Jurisdiction 1. The Chapeau Requirements for Crimes against Humanity a. An Attack Directed against the Civihan Population b. A Widespread or Systematic Attack c. An Attack Committed Pursuant to or in Furtherance of a State or Organizational Policy 2. The Definition of Enforced Disappearance a. The Deprivation of Liberty Element b. The Requisite State Authorization, Support, or Acquiescence c. The Refusal to Provide Information on the Fate and Whereabouts of the Victim d. The Specific Intent Requirement C. The Admissibility Requirement 1. The Gravity Requirement 2. The Complementarity Analysis D. The Interests of Justice V. HOW POSITIVE COMPLEMENTARITY COULD AID THE MEXICAN REFORM PROCESS DURING A PRELIMINARY EXAMINATION A. A Look at the Situation in Colombia: The Threat of an Investigation Has Already Contributed to Domestic Reform Efforts B. Positive Complementarity in Mexico: Three Innovative Measures that the OTP Could Adopt During a Preliminary Examination 1. How the Measures Adhere to the Rome Statute 2. How the Measures Could Exert Additional Pressure VI. CONCLUSION I. INTRODUCTION
At least when your loved one dies, you know where they are, what happened, you can eventually get used to it. We do not know what monster we are fighting. (1)
--Reyna Estrada, wife of disappeared husband
September 26, 2014 is now a date that holds much meaning for the Mexican people. Just after sundown on that day, in the town of Iguala in Guerrero, the local police surrounded three buses full of university students from Ayotzinapa and opened fire. (2) During the chaos that ensued, two dozen people were wounded, six individuals were killed, and forty-four students were taken captive. (3) The following morning the body of one of the students was found lying on a street with the skin from his face peeled off and his eyes gouged out. (4)
Despite the subsequent discovery of several mass graves in the area and several months of investigation, only one of the students' bodies has been positively identified. (5) The whereabouts of the other forty-two students remain unknown. More than a hundred local officials and drug cartel members have been arrested and charged in relation to the incident, but no trial has neared completion. (6) As will be discussed further in the next Section, the Iguala incident forms a part of a larger pattern of ongoing disappearances and enduring impunity in the country.
The events in Iguala triggered a serious debate in Mexico about how much the state is involved in mass disappearances--one that reflects the Mexican people's growing loss of confidence in the ability of its criminal justice system to investigate and to prosecute the crimes that arise from the Mexican drug "war." (7) In January 2015, former Attorney General Murillo Karam (8) publicly declared that, following the gunfire, members of the Iguala municipal police detained the students and turned them over to the drug cartel "Guerreros Unidos," all under the orders of Iguala mayor Jose Luis Abarca. (9) According to Karam, after this transfer, members of the drug cartel slaughtered and incinerated the students and tossed their remains into the San Juan River. (10) Karam proclaimed that this story was "the historical truth" and that he was prepared to close the case. (11)
Following these remarks, many individuals, including the President of the Mexican Commission for the Defense and Promotion of Human Rights (CMDPH), Luis Raul Gonzalez, contested the accuracy of the story, claiming that "Iguala is not a closed case," (12) because they suspected greater collusion between the Guerreros Unidos and federal officials. (13) Indeed, they had reason to harbor such beliefs: a 2014 investigative report, published by the Mexican magazine Proceso, alleges that Karam's story was the product of unreliable interrogations of captured members of the drug cartel, deliberately calculated to confirm that story. (14) In December 2014, a report authored by scientists from the Universidad Nacional Autonoma de Mexico cast major doubt on the supposed early morning incineration of the students. (15) Not trusting the Mexican government's investigative efforts, a delegation of the parents of the missing students enlisted the help of several independent experts, including the Argentine Forensic Anthropology Team (EAAF) and the Inter-American Commission on Human Rights-led (IACHR) Interdisciplinary Group of Experts, (16) Both of these entities have also released reports questioning Karam's story and the government's investigative efforts. (17)
On May 18, 2015, the same delegation of parents gathered at Leiden University for a panel discussion about the disappearances in Iguala. (18) Roman Hernandez, a lawyer from the Montaha Tlachinollan Center for Human Rights, (19) made the following statement on behalf of the delegation:
[t]he Mexican government is investigating [the students] as a result of probable connections with drug-trafficking ... [it] practices the re-victimization of the victims, in this case by attributing to the victim the reasons for [his or her] victimization. This can deepen the distrust of those same victims in the judicial institutions.... (20) Indeed, the Mexican government has alleged that the Guerreros Unidos had motives to apprehend the students: the students were believed to be members of a rival cartel called Los Rojos. (21) Though, there have been reports in the media that assert that at least one of the students was also an active military officer. (22)
Irrespective of which version of the events is correct, these clashing narratives about the truth demonstrate why the Mexican people have a growing loss of confidence in their criminal justice system. Since Iguala, the Mexican population has begun to act more visibly on its frustration with government corruption and the impunity (23) in Mexico. For example, in June 2015, Jaime Rodriguez became the first gubernatorial candidate in Mexican history to win as an independent. (24) However, he was not the only independent to win in that midterm election: independent and smaller party candidates took key victories across the country, winning positions as local representatives and as members of the lower house of Mexico's Congress. (25) These victories are staggering considering the historical political domination of Mexico's National Action Party (PAN) and the more recent emergence of two other major parties--the Institutional Revolutionary Party (PRI) and the Party of the Democratic Revolution (PRD). (26) These developments signal the beginning of a new intolerance towards corruption. The Mexican people are ready for change.
Legal Reform as the Response to Iguala
International institutions have also recognized the need for change, particularly with respect to Mexico's criminal justice system. In February 2015, the United Nations Committee on Enforced Disappearances (UNCED) released its concluding observations on Mexico, finding that there is a "generalized" context of disappearances in the country. (27) The UNCED noted that the grave case of the disappearance of the forty-three students illustrates the serious deficiencies in the state's ability not only to search for the victims of enforced disappearance but also to prevent, investigate...