Mexico’s Federal Prosecutor Must End Secrecy over San Fernando Massacres

7 October 2014

By Jesse Franzblau and Emi MacLean

Franzblau is a writer working with the National Security Archive, an independent non-governmental research institute and library located at George Washington University in Washington, D.C. MacLean is a legal officer for freedom of information and expression with the Open Society Justice Initiative. This article first appeared Sept. 25 on the Open Society Foundations blog.

Four years ago, in August 2010, Mexican officials uncovered the bodies of 72 migrants in the San Fernando, Tamaulipas region of Mexico, presumed killed by drug cartels after they were kidnapped on a bus heading north. Only months later, in mid-2011, authorities discovered some 200 more bodies in mass graves in the same region. To this day, the failure to give a clear account of what happened in San Fernando has become emblematic of a wider pattern of mishandled investigations, state secrecy and denial of major crimes in Mexico.

But there may be change ahead. On August 20, 2014, Mexico’s information oversight body, el Instituto Federal de Acceso a la Información (IFAI), ordered federal prosecutors to disclose information concerning state complicity in connection with some of the migrant killings. The ruling required prosecutors to release information before September 24 about the arrest of 16 members of the local police force in connection with the 2011 massacre.

According to U.S. declassified files [PDF] obtained by the non-governmental National Security Archive, through Freedom of Information Act (FOIA) requests in the United States, the Zeta criminal organization was at the time of the massacres operating with impunity in the face of “compromised local security forces.” The declassified files [PDF] also reveal that Mexican officials downplayed state responsibility for the massacres, going so far as to split up bodies in the mass graves to “make the total number less obvious and thus less alarming.”

Mexican prosecutors initially refused to release files in response to an information request, asserting that the records were part of a preliminary investigative file (averiguación previa) that should remain classified for 12 years. IFAI rejected this argument and ordered disclosure: Mexico’s Transparency Law mandates disclosure of otherwise protected information when it relates to grave human rights violations or crimes against humanity.

This decision is significant beyond Mexico’s borders. The Inter-American and European human rights tribunals have acknowledged repeatedly the right of both victims and the broader society to know the truth about such grave violations. Further, besides Mexico, there are at least five other countries in Latin America—Brazil, Colombia, Guatemala, Peru, and Uruguay—with similar provisions in their laws which prohibit governments from keeping secret information related to human rights violations and crimes against humanity. The Organization of American States, in its endorsement of the Model Inter-American Law on Access to Information, has also accepted that exceptions to freedom to access information should “not apply in cases of serious violations of human rights or crimes against humanity.”

The Mexican information commission’s ruling came after sweeping transparency reforms earlier this year, and the appointment of seven new IFAI commissioners. It represents the first acknowledgement by IFAI that the egregious acts of violence migrants have suffered traveling through Mexico constitute grave human rights violations. The commissioners further declared themselves competent, for the first time, to determine the applicability of human rights criteria in access to information cases, even in the absence of such a finding by another legal authority. These are important reversals in the information commission’s previous stances, and mark a major turning point in related cases currently moving through Mexico’s courts.

Following the ruling in this case, IFAI also withdrew its opposition to a legal effort by two NGOs—Article 19 and the Foundation for Justice (Fundación para la Justicia—FJEDD) to get access to investigative files in connection with migrant killings, including the 2010 and 2011 San Fernando incidents. IFAI had previously supported the federal prosecutors’ refusal to release any its files on the crimes, arguing that it “did not have the faculty, capacity, expertise, knowledge, or the personnel to investigate and determine the existence of grave human rights violations or crimes against humanity” with respect to the San Fernando killings.

So far, judges in that case have ruled against IFAI and in favor of disclosure. But the cases are on appeal and will be heard on a fast-track by the Mexican Supreme Court. Now, the prosecutors alone—without the information commission’s backing—will defend the continued secrecy.

Family members of the victims of the massacres continue to seek answers from the state on the truth behind the killings. Civil society organizations—in Mexico and elsewhere—continue to defend the public’s right to know the truth.

By law, decisions of the Mexican information commission ordering the disclosure of government information are final. So far, federal prosecutors have given no sign as to how they will respond to this binding order.

Jesse Franzblau filed the information request as part of the Migration Declassified project with the National Security Archive, resulting in the IFAI judgment described here.

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