Paraphrasing Blaise Pascal, as we could not subdue the force to the justicewe have delivered the justice to the force. The National Guard (GN)which performs a public security function of a civilian nature, has been handed over to the military jurisdiction. Now, despite carrying out civilian tasks (and over civilians), its actions will not be judged by ordinary criminal courts, but by military jurisdiction.
An institution that considers the human rights as an obstacle to fulfilling its functions on the civilian population and that, in addition, is not judged by civil authorities when it commits violations of those rights, should not be responsible for the public safety. It’s too big a risk.
The formal assignment of the functions of public safety that performs the GN to military command is about to be consummated. At the federal level, the GN will cease to be a civil institution in charge of the public safetyThe reform approved yesterday, September 19, 2024, by the Chamber of Deputies, will now go to the Senate for review and voting.
Let us recall the judgment issued by the Inter-American Court of Human Rights (IACHR) in the “Rosendo Cantú et al. vs. Mexico” case on August 31, 2010, which established that military justice must refrain, under any circumstances, from hearing cases of human rights violations attributed to members of the Mexican armed forces, regardless of whether they are on active duty or not.
The IACHR has reiterated in abundant jurisprudence that “military criminal jurisdiction is not the competent forum to investigate and, where appropriate, judge and punish the perpetrators of human rights violations, but that the prosecution of those responsible always corresponds to ordinary or common justice.” This conclusion applies to all human rights violations.
It has been consistently emphasized that, due to the nature of the crime and the legal right injured, the military criminal jurisdiction should not be responsible for investigating or punishing those responsible for human rights violations.
The opinion approved by the Chamber of Deputies yesterday, regarding the initiative presented by the President of the Republic on February 5, 2024, reforms and adds various articles of the Political Constitution of the United Mexican States, formalizing the militarization of public security in Mexico.
This process, which has been developing over the last three six-year terms, is consolidated with these legislative changes. The militarization of federal public security is made official through the National Guard, which will not only be under military command (with operational and administrative control), but its personnel will also be subject to military jurisdiction.
Currently, Article 13 of the Political Constitution of the United Mexican States (CPEUM) establishes that “military courts may not, under any circumstances and for any reason, extend their jurisdiction over persons who do not belong to the Army.” This implied that GN personnel, being a civil public security institution, should not be subject to military courts, but rather to civil courts, in the event of committing crimes in the exercise of their functions.
However, this distinction will disappear. With the approval of the ruling, military jurisdiction will be extended to the GN, placing its members under a special regime of responsibility (or impunity), even though their functions are public security, not military. The new text of constitutional article 13 will say: “military courts may not, under any circumstances and for any reason, extend their jurisdiction over persons who do not belong to the Army, Air Force, Navy and National Guard.”
This change is worrying, since the members of the GN, despite their military origin, perform public security functions, not military ones, in a department created for those functions.
Furthermore, Article 21 of the CPEUM, currently, in its paragraphs 10 and 12, establishes that: “public security institutions, including the National Guard, will be of a civil, disciplined and professional nature”, and that “the Federation will have a civil police institution called the National Guard, whose purposes are those indicated in the ninth paragraph of this article”. However, the reform modifies this wording to indicate that “public security institutions will be disciplined, professional and of a civil nature”, eliminating the express reference to the civil nature of the GN.
Furthermore, it is now specified that the GN will be a “professional, permanent public security force made up of military personnel with police training, dependent on the Secretariat of National Defense.” In this way, the GN is officially under the control of SEDENA, becoming a public security agency controlled by the army.
This change has serious implications, as the army extends its functions to public security activities, preserving military jurisdiction and affecting the civil rights and access to justice of those involved in public security activities. Any violation of human rights by the GN will be under military jurisdiction.
It is important to note that this reform ignores recommendations such as those of the “Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions” of the United Nations, dated April 24, 2014, which called for “moving away from the military paradigm in police activities.” Nor were the recommendations of the Inter-American Court of Human Rights in cases such as Cabrera García and Montiel Flores vs. Mexico, or those of the National Human Rights Commission, in relation to serious violations committed by SEDENA, considered.
This is a serious setback in access to justice and human rights, since not only is command of the GN granted to military authorities, but military jurisdiction is extended to its personnel, creating a space of possible impunity for those who commit serious human rights violations. Instead of strengthening citizens’ rights, this reform seems to privilege military authorities.
Let us not fool ourselves: the damage caused by Genaro García Luna to the civilian police forces was monumental. He corrupted them to such an extent that it became impossible to trust them. That is his legacy. Since we have not managed to build a fair and trustworthy police force, we have settled for a strong and disciplined police force, under military command.
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