Sunday, February 27, 2005

Who’s to blame for Mexico's failed genocide charge?

It seems that everyone's blogging about genocide these days, and I have many pent-up thoughts on the issue. However, here I want to address the failure of the Mexican Supreme Court to allow a genocide charge to go forward. Months ago, I blogged about this, noting only a couple of dissenting voices as to whether this was really the most sound approach to take, either legally or politically. (I'll leave aside for the time being the question of whether genocide is actually applicable in this case.)

Now we have an op-ed in today’s Los Angeles Times by Denise Dresser, a professor of political science at the Autonomous Technological Institute of Mexico and a former member of Mexico's Citizens' Advisory Committee to the Special Prosecutor for Crimes of the Past, who is also one of the foremost interpreters of Mexican politics for English speakers. She writes eloquently, abundantly and frequently. But I sense that she’s let her anti-Fox bias (which I share) influence the way she’s interpreting Mexico’s attempt to deal with its past.

Expecting to be enlightened by this piece, instead it got me thinking, especially as Dresser seems to allege that Fox “may” be to blame:
Fox may not want crimes of the past to be punished or a former president to be imprisoned for them. Fox may say that he is committed to justice, but he would actually prefer that it not take place. That is because prosecuting the past would entail taking on the former ruling Institutional Revolutionary Party, and Fox has shown that he doesn't have the political will to do so. Prosecuting Echeverria would mean dismantling the old regime, and Fox would rather appease it.
Even though I’m no expert on Mexico, this struck me as rather odd – blaming a President for the failures of a legal system, with no questioning at all of the risky strategy pursued by a prosecuting attorney, apparently with the encouragement of domestic and international human rights groups.

As Dresser explains it, the special attorney didn’t necessarily want to go for genocide charges, but the Mexican court’s rulings about murders having a 30-year statute of limitations forced him to try this in hope that international laws might take precedence over domestic ones:
A recent ruling of Mexico's Supreme Court — that it was too late to bring a former president to trial — is just another example of a legal labyrinth with few exits. In Mexico, domestic laws still trump international treaties. Although many nations have surrendered their sovereignty to international norms on human rights, Mexico has not. So, because he had no other choice, the special prosecutor resorted to the charge of "genocide" against former President Luis Echeverria in the 1971 killings of student protesters. The prosecutor believed that perhaps crimes against humanity might be punished even if murder committed long ago could not. But the court ruled the Mexican Constitution establishes a 30-year statute of limitations that not even international treaties on genocide can void.
The problem with all of this is that it’s unclear what Dresser thinks Fox should have done, although, as I quoted above, she recognizes that whatever it is would require dismantling “the old regime.” That’s a fine goal, but in the process, she gives me the impression that she thinks judges who abide by the “strict letter of the law” or the statute of limitations upheld by that law are in error.
Miles of documents unearthed by the special prosecutor's office mean nothing to judges who abide by the strict letter of the law and the statute of limitations it upholds.
She doesn’t argue anywhere that the Supreme Court could have interpreted its laws any differently – which very well might be the case – but rather seems to be making the argument for punishment at any cost. Even if that is not the case, it’s pretty clear where she’s coming from, i.e., the fairly standard position of human rights groups that only truth-and-justice will prevent a resurgence of state-led abuses.

Without being fully informed of all the jockeying around the past in Mexico, however, it seems to me that 1) this is a situation that might have been foreseen by more savvy – and less rigid – human rights activists (i.e., that perhaps the political/legal situation might not yield a successful strategy of judicial punishment), and 2) Fox, while he might be guilty of other forms of appeasement, shouldn’t be blamed for appeasing elites of the old regime because of what the Supreme Court happened to rule upon.

In this month’s edition of Current History, Dresser defines more directly what really has her dander up, namely, that Fox – who she now describes as “no longer a lame duck but a dead duck” – has made a series of politically strategic mistakes, in large part deriving from his decision to make alliances with the PRI and go after the leftist PRD.
Four years ago millions of Mexicans voted for change. They heard Fox’s promises and believed them. They elected a candidate who would kill the dinosaurs and tame the dragons. But he could not, or did not want to. Instead of wielding his sword, he tripped and fell on it. Rather than confront those who had despoiled Mexico, he ended curled up next to them. Instead of weakening the PRI when he could, he tried to collaborate with it in Congress and refused to take on the vested interests in the unions that the former ruling party had created. By attempting to cogovern with the PRI, Fox has breathed new life into it. Unwittingly, the president has become the PRI’s secret weapon. The results of this mistaken accommodation are there for all to see: an emboldened PRI and a weakened government, a cornered president and more of the same old politics.
As you can see from my highlights, Dresser is far more generous, or agnostic, about just how much Fox should be blamed for this strategy. Her far more strident assessment in today’s op-ed about a lack of “political will” should be also be viewed alongside this paragraph in the Current History piece:
The reasons behind Fox’s failures are complex and varied: the appointment of a cabinet of strangers, the misuse of his political capital during his first year in office, the lack of clear priorities and concrete strategies, the decision to negotiate with the PRI instead of dividing it after the 2000 election, the use of the bully pulpit in a country with no congressional or presidential reelection, the persistence of institutions created for dominant party rule, the intermittent sabotage of Fox by members of his own party, the uncontrollable activism and presidential ambitions of his wife, Marta Sahagun. Fox painted himself into a corner but also allowed others to help.
Dresser fears that Fox will have “squandered” the potential of the democratic transition, if the PRI comes back to power:
Ultimately, what is at stake for Mexico with the PRI’s return is the viability, the longevity, the survival of Mexican democracy beyond 2006. Because, if the PRI returns to the presidency, Mexico will slide back from an imperfect democracy to the government it lived with for 71 years—only worse. And the one barrier against this outcome is a proto-populist politician who wants to govern Mexico by polarizing it.
So, I suppose the point of all this is to say that evidence of Fox’s failed attempt (if there was one) to reform the Mexican political system does not mean that he holds all the cards when it comes to reversing Supreme Court verdicts.

Dresser seems to get confused about what she's talking about here, as in the end of her op-ed when she reverts back to a focus on truth – “any democratic government that arrives in office after a democratic transition has an ethical obligation to explain what happened in the past. Truth is a right.”

So after bemoaning the failure of the legal system (and asserting various levels of executive branch complicity), Dresser changes the debate and argues that the truth is not coming out, which is not the same thing. Maybe this was in fact Fox’s strategy, to set the prosecuting attorney off on a wild goose chase. But Fox has also gone on the record in support of a truth commission – and (unlike changes in the law or in court rulings) that’s something he could have the power to make sure is implemented.

We can blame Fox all we want for potentially squandering the potential for a genuine democratic transition, but there’s still time to get to the truth of Mexico’s dark past.


Anonymous said...

Dear David,

Thanks for the interest in Mexico's "dirty war" and my writing about it.

Here are some responses to your comments:

- The reason I argued Vicente Fox "may" be to blame fo Mexico's failed attempts to deal with its past are the following: a) He chose not to establish a Truth Commission (as he had promised during the campaign) and instead chose the legal/judicial route to the past through a Special Prosecutor's Office; b) Given who was chosen to run it, its institutional dependence on the Ministry of the Interior, and the fact that any indictment he was able to produce would run into the statute of limitations, suggest as the Human Rights Watch report on the Special Prosecutor's Office (released two years ago) argued, that it was set up to fail; c) All this points to a deeper, structural problem that I point out in my "Current History" piece: instead of taking on the PRI when he came into power, and dismantling the old system (a Truth Commission would have been an essential part of that strategy) he chose a policy of appeasement and collaboration, thinking that he could get the PRI's votes in a divided Congress his own party didn't control. That choice determined the failure/paralysis of his government; d) I'm not blaming Fox for the current failures of the legal system or the risky strategy pursued by the Special Prosecutor's office; I'm blaming him for an initial naive and misguided strategic political route that four years ago made the search for truth and/or justice virtually impossible; e) As for what Fox should have done: he should (and could) have acted as a politician who had a broad mandate for change; who campaigned on the promise of "kicking the PRI out of Los Pinos" and instead chose to sleep with the enemy.

- I am on the record (in numerous articles in Proceso and Reforma), in favor of a Truth Commission, or any sort of mechanism that would have allowed Mexico to understand its past (even without punishing it). I don't know anyone on the human rights community who rigidly pushed for a Special Prosecutor's Office as you suggest. The blame, I believe, doesn't lie with human rights activists but with a president who early on in his term, decided to sacrifice the quest for truth for the sake of accomodating the PRI. Indeed, Fox doesn't hold all the cards when it comes to Supreme Court verdicts, but his Minister of the Interior, Santiago Creel (responsible for eliminating the Truth Commission proposal), does know that the "legal" route will invariably crash into the statute of limitations (and the Mexican Senate, controlled by the PRI, was careful to include a "reserve" when it signed the Genocide Convention, so that no retroactivity applies).

- Yes, I do bemoan the failure of the legal system (which, as you recall, has never been truly independent) to address Mexico's past. And unfortunately, that failure is directly related to whether or not the truth comes out. Given the way the Special Prosecutor's office was set up, there is no other mechanism for finding our the truth but trials; trials that will probably not happen unless the few and more enlightened judges on the Supreme Court find a way of circumventing laws that were created to protect political elites, not call them into account.

As for your comment that there's still hope, given that Fox has gone on the record in support of a Truth Commission, and therefore he's not to blame ... what can I say? Where to start? It's comparable to believing George W. Bush when he promised a "humble" U.S. foreign policy.


Denise Dresser

David said...


Useful clarification of your position, but the last paragraph misinterprets my point. I say there's still "time" -- you are the one saying there's no hope. And in my penultimate paragraph I say that maybe it was Fox's intention all along to set the Special Prosecutor's office on a wild-goose chase, which you imply in your response was the case. You would know better than I, although I'd like to see more evidence of this "intent" on his part.

It still seems to me that you attribute far too much agency to Fox, especially given the rest of your analysis. But my seeking to point out these contradictions (or what seems to me to be that) in your analysis does not mean that I'm willing to let Fox off the hook. It simply means that I think it seems unreasonable to attribute sole responsibility to the President, which is the general thrust of your argument. You don't really address the legal arguments which overturned the case, and which may have some merit.

You say that no one in the human rights community rigidly pushed for a special prosecutor's office. But did anyone dare to point out why this might be set up to fail -- not because of lack of resources, but simply because the law might not support genocide or other charges?
I note that the initial HRW report was much more focused on a truth commission than on the prosecutorial possibilities. And implicitly they seemed to recognize the legal limitations, with the call for a high level panel of lawyers (which might have some credibility) to assess the possible legal routes to be taken.

(BTW, I didn't mean to imply that you or others opposed a Truth Commission.)

The HRW report, while arguing ultimately for the importance of making the findings public (a truth-telling function), was nevertheless perhaps a bit naive in thinking that simply providing greater resources for the Special Prosecutor would be enough to overcome the legal obstacles, which they also recognized to be significant. I think there was a contradiction in that analysis as well, but it has to do with human rights groups' aversion to calling what appears on the surface to be an advance as actually misguided -- e.g., the indictment on genocide charges -- when I'd bet that's what they feel in their gut. I understand this tension -- as I witnessed it directly during my tenure there -- but I'm not sure it's always the most helpful, or the most sound analysis.

According to your analysis of events, there's simply nothing to be done, all is lost, due to Fox's original sin of cozying up to the PRI. There is no hope.

On further reflection, if I were a citizen activist in Mexico, that kind of posture would be quite deflating and discouraging. I know that was certainly not your intent!

David said...

Rereading this, I'm struck by one of your last statements: "...trials that will probably not happen unless the few and more enlightened judges on the Supreme Court find a way of circumventing laws that were created to protect political elites, not call them into account."

Are you really advocating circumventing laws rather that changing them?

Hektor said...

To begin, a sole President is not responsible for the failures of an entire country. I eally could write as much as you did guys but I can see that you need much more information on the matter. I actually blame more our way of thinking as a whole Mexican nation, thats why no matter who comes next as a president, he or she will still not work.A president can't do much without the congress approval in many areas.

On the other matter about the genocide and convicting an old man for past events I think Mexico sould rather look to the future and que bussy planning strategies for economic development, other wise millions would starve to death which would en up being a genocide with a very slow death.