The International Convention for the Protection of All Persons from Enforced Disappearance was adopted by the United Nations General Assembly on December 20, 2006. The Mexican State ratified it on January 15, 2008 and promulgated it on June 22, 2011. From that moment on, in accordance with Article 1 of the Constitution, the inhabitants of the national territory are entitled to the human rights contained in the Convention itself. At the level of domestic law, this implies that all national authorities are obliged to promote, respect, protect and guarantee them, in accordance with the principles of universality, interdependence, indivisibility and progressivity, as well as to prevent, investigate, punish and redress their violations in accordance with the provisions established by law.
Based on the provisions of Article 1 mentioned above, these populations, as “human beings” and their hierarchy, have the right, for example, “to report the facts to the competent authorities, who shall examine the complaint promptly and impartially and, where appropriate, initiate a thorough and impartial investigation without delay,” as well as to take appropriate measures “to ensure the protection of the complainant, witnesses, relatives of the disappeared person and their defenders, as well as those who participate in the investigation, against any ill-treatment or intimidation on account of the complaint made or any Statements made. Likewise, they have the human right to request that the authorities conduct an investigation, even if a formal complaint has not been made, “provided that there are reasonable grounds to believe that a person has been subjected to enforced disappearance” (Article 12 of the Convention).
Regardless of the Mexican State’s accession to the above-mentioned Convention or the provision of different regulatory assumptions in the national legal system, the fact is that the Mexican authorities have not fulfilled their obligations or guaranteed corresponding rights. On the contrary, the issue of enforced disappearance has worsened in many different ways, and has taken root in a large number of public and private spaces. Although this phenomenon was not born with the current authorities, the truth is that their complicity has made it impossible to draw the dividing lines between the authorities and criminals in terms of perpetrators, facilitators, and those in hiding. The crisis is so great that there are those who give it a humanitarian character.
The apparent inability and/or complicity of past and present authorities has been demonstrated in a wide range of acts and omissions. There is no prevention, investigation or prosecution. Records are insufficient when they are not completely falsified. Prosecutions are rare and impunity for this phenomenon increases at a shameful and very consistent rate of 94 percent. The change to a government and a party that, from 2018 until now, continues to promise transformation, has not had the slightest impact on the environment or criminal enterprises.
In the face of the lack of action and responses by the State authorities and the despair this causes among many people, a group of civil society organizations decided to ask the Committee against Enforced Disappearances established under the Convention to update the assumptions set out in Article 34 of the recent Convention. Under its provisions, “If the Committee receives information that, in its opinion, contains justifiable indications that enforced disappearance is practiced on a widespread or systematic basis in the territory under the jurisdiction of a State Party, and after requesting from the State Party concerned all information relevant to that situation, it may submit the matter, as a matter of urgency, to the consideration of the General Assembly of the United Nations, through the Secretary-General of the United Nations.”
Indeed, in recent months, various organizations have sent reports to this expert committee, with the aim of initiating such a mechanism. Among them all, for example, I consider what was presented by Amnesty International. It highlights that the serious crisis of disappearances and forensics that Mexico is experiencing is characterized by the presence of more than 133,000 missing persons and more than 72,000 unidentified bodies. It also expresses that it is clear that the Mexican state has maintained a discourse that reduces the scale of the crisis, which is represented by the statements of the President of Mexico, in the sense of denying that cases of enforced disappearances in the country are linked to the violence of organized crime. Amnesty International considered in its request that although this statement is partly true, “there is a simplification of the phenomenon of disappearance in the country that ignores that in many of these cases organized crime operates with the permission, support or approval of the authorities.”
In the final part of its application, Amnesty International stated that the Mexican authorities had failed to implement a national policy to prevent and eliminate disappearances, did not provide adequate budgets to address the problem, did not create effective mechanisms to consult with groups of relatives and involve them in decisions, delegitimized the human rights organizations that accompanied the groups, and did not do what was necessary to reduce impunity “which constitutes the main cause of the crisis of enforced disappearances in Mexico.”
Based on reports from various organizations, the Committee of Experts on Enforced Disappearances opened hearings to expand its investigations and listen to the Mexican state. At the meeting held on September 29, various civil society organizations reported that although the Commission had asked the Mexican state to visit the country since 2013, after the visit and until 2021, measures were recommended that were not implemented. Thus, for example, there is still no “National Policy for the Prevention and Elimination of Disappearances”. No progress has been made in combating the structural causes of impunity; Enforced disappearances were not prosecuted, while there were only 373 convictions, less than 0.3 percent of the total cases identified; Nothing has been done to abandon the militarization of public security. At the same session on September 29, the Mexican state presented its main arguments and presented a report that is not yet known because it remains secret.
In mid-October, the aforementioned mechanism of Article 34 of the agreement was activated. This means that the members of the Committee of Experts collect the necessary information from the Mexican State about the situation of missing persons, on which they have conducted consultations and taken the measures they deem necessary. Once these cases have been exhausted, and in accordance with the provisions of Rule 106 of the Rules of Procedure and Methods of Work of the Committee against Enforced Disappearances, the Committee must decide in the coming months whether to submit the matter as urgent to the attention of the General Assembly of the United Nations through its Secretary-General.
Given the seriousness of the situation in Mexico with regard to enforced disappearances, it is possible that the General Assembly will issue a resolution against the Mexican State, but it is not currently possible to determine its meaning and effects. No matter how realistic these things may be, the fact is that in such a situation a situation of increasing complexity will be generated. Mexico will be the only country in which the Committee intervenes. Beyond the limited legal scope that UN resolutions typically impose on Member States, specific reporting on security conditions in Mexico would affect its international reputation and the potential activation of additional oversight and reporting mechanisms. As well as influencing the commission – through action, omission or complicity – of crimes that, according to the Convention itself, have the character of crimes against humanity and are therefore not subject to statute of limitations.
In the coming months we will learn about the decisions taken by the Committee of Experts, the Secretary-General of the United Nations and its General Assembly regarding the situation and type of enforced disappearances in Mexico. Because of such actions, we will hear opponents claim improper interference. In the face of such discourses, it is henceforth possible to point out that submission to the Convention and its mechanisms – including its Article 34 – results from a sovereign decision of Mexico aimed, specifically, at achieving the intervention of international organizations – not foreign national states – in the face of institutional crises that cannot be resolved by national authorities. Acceptance of the mechanism of action of the three mentioned parties is a kind of institutional insurance against the failure of institutional channels that, in view of the seriousness of the events taking place in the country, have been updated in accordance with the terms of their own policy.