Roberto Ochoa joins JiC for this blog post on the potential preliminary examination of the situation in Mexico by the International Criminal Court. Roberto is a Mexican lawyer and political philosopher who has been working for more than 10 years with victims of the war on drugs in his country.

Since 2012, the International Federation for Human Rights (FIDH) in collaboration with Mexican organisations has repeatedly sent communications to de Office of the Prosecutor (OTP) at the International Criminal Court (ICC), asking them to open a preliminary examination into the situation in Mexico. A preliminary examination is the phase conducted by the ICC prior to deciding whether to open an official investigation. Mexico is a party to the Rome Statute since 2006. The only publicly available official response provided by the OTP to date shows that no material analysis has been undertaken. The OTP has expressed, in summary, that the gross human rights violations in the country cannot be legally considered as crimes against humanity because they are the result of a broader context with different elements, such as the structural weakness of the administration of justice, a high level of impunity, and increases in organized crime. The costs of looking away from this crisis are growing every day and there is the risk of the situation becoming unmanageable very soon.

For decades, academics and observers have insisted quite rightly that Mexico must stop merely being the United States of America’s backyard, the place where what is not wanted is hidden or cast aside. In 1994, Mexico, the U.S. and Canada signed the North American Free Trade Agreement, transforming the region into the largest and most active economic zone in the world. However, unlike with the European Union, the possibility of a more comprehensive integration (e.g., in terms of labour and migration) was immediately ruled out. Neoliberalism, the fantasy of the self-regulating market that economist Karl Polanyi warned about 40 years earlier, was on the rise. Based on that belief, allowing the free passage of all goods through international borders and boosting trade and thereby economic prosperity was the perfect way to generate value for society. There were warnings regarding the blind spots that threatened to undermine such aims (e.g., José Angel Conchello on one side of the political spectrum and the EZLN on the other). Nonetheless, governments at the time decided to ignore such warnings. The consequences for Mexico have been devastating.

Not a day goes by in which Mexicans are not exposed to gross human rights violations. Thousands of mothers have dug the earth with their bare hands in search of their children’s remains. They are not looking for the culprits and yet, they are regularly threatened and some even murdered. Fifteen such cases have been documented, including 5 of them in 2022.  Over the past few decades, the country has broken down to such degree that crime has become a principal occurrence in the country. The rationale behind these horrors continues to escape us. We have certain figures (more than 109,000missing persons) and certain stories (for example, the justification given by President Felipe Calderon to the militarization of public security because the government must fight organized crime), but what we know about the violence in Mexico is only the tip of the iceberg of a very complex phenomenon that is continually getting worse.

It is time for international justice institutions to intervene. We do not need more documentation, theories, or interpretative accounts of what is happening in the country. As long as judicial proceedings are not properly carried out, we will remain in the dark. Between 94 and 96 percent of the serious crimes committed in Mexico go unpunished, while impunity for enforced disappearance cases is above 99 percent. 

In his most recent statement to the United Nations Security Council on the situation in Libya, ICC Chief Prosecutor Karim Khan, spoke in a heartfelt manner about the victims’ perspective and suffering. He concluded his speech with a moving account of what a mother told him in Tarhuna: “[m]y son has gone,” the woman said. “I can accept that but I just want to know what happened and where he is so I can bury him.” Kahn was speechless for a moment, as he stated: “Not a place for … glib sound bites or some kind of pity response; I simply paused.”

This is the same experience that many of us Mexican lawyers and human rights defenders have felt since 2011, when alongside the Movement for Peace with Justice and Dignity, we joined the victims and relatives of disappeared persons. During our tours from the northern to the southern parts of the country, we discovered that missing persons numbered in the tens of thousands. Since then, the situation has only worsened. We are most likely talking in the hundreds of thousands of disappeared persons. Officially, 109,689 missing persons have been counted as of January 6 2023, with dozens morebeing added every day. The National Commissioner for Missing Persons, Karla Quintana, acknowledged that in certain regions of the country, this figure could be up to 5 times higher. Many fear that if the ICC does not open a preliminary examination, the international community will continue to neglect the humanitarian tragedy in the country and, as a result, the number of missing persons will continue to increase. At a certain point, the ICC will no longer be able to postpone its obligation to act; but even then, the pain and human suffering will be so disproportionate that holding perpetrators accountable may hardly be enough to address the victims’ needs and concerns. 

During the tenure of the previous Chief Prosecutor, Fatou Bensouda, the OTP almost opened a preliminary examination into the situation in Mexico. In her last interim report from December 2020, she noted that in 2021 there would be a response on how to proceed with regards to the country. The OTP failed to do this.

In 2021 and 2022, two new communications from the FIDH pertaining to events that occurred in the states of Nayarit and Veracruz were added to those previously presented. The former denounces the incrustation of a criminal structure within the Public Prosecutor’s Office of Nayarit and the systematic attack to disappear at least 47 persons in 2017. The latter refers to enforced disappearances from 2012 to 2016 during the government of Javier Duarte in Veracruz. Among other things, this last communication documents the discovery of the two largest clandestine graves in Latin America, where more than 600 bodies were found.

Interpretations of what is happening in Mexico generally point to different areas of Public International Law – e.g., relying on Transnational Criminal Law to combat drug cartels rather than employing International Criminal Law. But enforced disappearance is an international crime.  Moreover, this perspective fails to address the main issue that Prosecutor Kahn highlighted in the last paragraph of his statement regarding the situation in Libya: “[Justice] is really not about power, it is about those that just want to have the very basics, to live in peace and when they have suffered loss, to know what happened, and to have a modicum of justice because their loved ones’ lives mattered like the world to them.”

Regardless of the area of public international law that best captures the complexity of the situation in the country, international criminal law and the ICC have an important role to play. They exist to hold accountable those most responsible for atrocity crimes and in this manner, help alleviate some of the suffering experienced by victims.  Accordingly, it is time, for the OTP to open a preliminary examination and thereby make that promise of a modicum of justice come true.