Briefing on The Murder of Human Rights Lawyer Digna Ochoa

Human Rights Defenders under Threat in Mexico
before the U.S. House of Representatives Congressional Human Rights Caucus

Testimony of Elisa Massimino
Director, Washington Office, Human Rights First

November 13, 2001

I. Introduction

Congressman McGovern and members of the Human Rights Caucus, thank you for convening this briefing and for the opportunity to share our perspective on the murder of Digna Ochoa and the situation of human rights defenders in Mexico. We are extremely grateful to you for your leadership on this and so many important human rights issues, and we thank the very dedicated staff of the Caucus for steadfastly keeping human rights concerns on the agenda of the Congress.

My name is Elisa Massimino, and I direct the Washington office of Human Rights First. Since 1978, the Committee has worked to protect and promote fundamental human rights, holding all governments - including our own -accountable to the standards contained in the Universal Declaration of Human Rights and related international human rights instruments. Human Rights First focuses its efforts on how best to protect human rights in a lasting way, by advancing international law and legal institutions, by working to build structural guarantees for human rights in national legal systems, and by assisting and cooperating with lawyers and other human rights advocates who are the frontline defenders of human rights at the local level.

Digna Ochoa was one such frontline defender. Our work with her goes back to 1996, when Digna was a staff attorney at the Miguel Agustin Pro Juarez Human Rights Center (PRODH), which is represented here today by Emma ("Michel") Maza. Digna and the PRODH staff were threatened on a number of occasions. In 1997, the PRODH office in Mexico City was surrounded by a number of armed, unidentified individuals in what we believe as an attempt to intimidate them and prevent them from meeting with international human rights observers who were then visiting Mexico. The threats resumed in 1999 and culminated in the terrible tragedy that brings us here today.

II. The Fox Administration: An Opening to Reform

You have already heard in detail about the nature and circumstances of the murder of Digna Ochoa and its immediate aftermath. I have been asked to put this terrible event into a broader context to examine what it tells us about the progress made with regard to human rights in Mexico since the Fox Administration took office last December 1 and the challenges it faces in the time ahead.

Unquestionably, the Fox Administration has brought a welcome breath of fresh air into the fight for human rights in Mexico. For many years Mexico's government bridled at international scrutiny of its human rights situation, in spite of the fact that human rights violations in Mexico are among the most serious in the Western Hemisphere. Police, soldiers and other state agents have long been implicated in extra-judicial killings, massacres, forced-disappearances, torture and other mistreatment. Officials responsible or implicated have seldom been investigated or prosecuted, let alone convicted or imprisoned. And the indigenous peoples in Mexico's southern states have been suffered extensive discrimination.

Profound political changes in Mexico that have allowed opposition to parties to break the seven-decade long hold on power held by the PRI offer hope for improvement in human rights. The Fox Administration frankly acknowledges the serious human rights challenges Mexico faces. This openness has encouraged Mexican citizens to speak up, and many find it easier now to express their political choices, raise complaints about human rights abuses, and advocate change.

President Fox has taken a number of important steps - some symbolic, some more concrete, but all important - to demonstrate his government's commitment to improve human rights:

• He appointed a prominent and respected human rights activist, Mariclaire Acosta, as Undersecretary of Foreign Relations for Human Rights and Democracy;
  
  
• His government has removed cumbersome and often unreasonable travel restrictions that restricted the capacity of Mexican human rights groups to host their counterparts from abroad;
  
  
• His government has admitted the existence of serious human rights problems, such as extensive torture in the criminal justice system, which previous governments had denied;
  
  
• Last Thursday, President Fox ordered the released two environmental activists - Rodolfo Montiel and Teodoro Cabrera - former clients of Digna, who had been jailed for two years after being tortured into confessing to drugs and arms crimes few believe they committed.

These are important and hopeful signals of the Fox Administration's intentions. But the murder of Digna Ochoa is a grim reminder that free elections, a new government, and good intentions alone are not enough to roll back decades of entrenched, official hostility towards human rights and those who advocate for them. Digna was killed because she promoted and defended human rights. Her colleagues and other rights defenders continue to be threatened for the same reason. In spite of the welcome and important changes in Mexico, human rights advocacy still comes with grave costs.

Human Rights First believes that until Mexican institutions, particularly those related to law enforcement, security and criminal justice, are reformed, reshaped and made more accountable, they will continue to perpetuate abuses. Digna dedicated her professional life to bring about such changes, and her fight for them probably led to her murder.

III. The Challenge of Institutional and Legal Reform

The initial steps taken by the Fox Administration, while important, must be complemented with deeper changes of the kind that Digna fought for. The issue of torture in the criminal justice system, one of Mexico's foremost and ongoing human rights problems, is illustrative. Like so many other defendants in Mexico, many of Digna's clients, including the recently released environmental activists, were forced to confess to the crimes for which they were ultimately convicted and jailed. Despite ample evidence of this abuse, a paucity of corroborating evidence of guilt, and a panoply of paper guarantees, Mexican prosecutors and judges failed to seriously question the prosecution's methods or its case, or to reverse the conviction on appeal. This failure to exercise more diligence in defense of the basic rights of the accused is, unfortunately, the norm in Mexico.

One approach to improving the treatment of those in the criminal justice system would include reforming key elements of the legal framework, and combining training for prosecutors, police and judges with a healthy measure of individual and institutional accountability that is now utterly lacking. The PRODH and Human Rights First are about to publish a 208 page joint report that examines how torture, intimidation, and coercion of detainees are practices deeply embedded in Mexican criminal law and practice. We found that, to a significant degree, abuse persists because the law not only permits but actually encourages it - thus the title of the report, Legalized Injustice. Because the abuse is so institutionalized, those - like Digna - who speak out against what happened to her clients are perceived as enemies of the system by those who have come to depend on and seek to retain such practices as if they were legitimate prerogatives of authority. In such a context, advocacy becomes a dangerous profession.

Torture may be the most shocking aspect of the Mexican criminal justice system. But it is a system that is deeply flawed in many other ways. Mexican criminal justice fails to live up to internationally recognized standards of fairness and due process, and to the principles of its own Constitution. Our report with the PRODH makes concrete recommendations for systemic changes in law and practice to reduce or eliminate torture and mistreatment. These recommendations include introducing an exclusionary rule that would keep out evidence tainted by torture and ensuring that an impartial authority - a judge, not the prosecutor - receives confessions directly.

If these changes were made, Mexico's criminal justice system would be less susceptible to misuse by abusive authorities than it is today. There is still no effective mechanism to dismiss cases in which the only evidence against suspects is coerced confessions. President Fox had to intervene personally in the cases of Montiel and Cabrera, because the justice system was incapable of doing the right thing. As recently as last July, several months into President Fox' presidency, an appeals court confirmed the conviction against Montiel and Cabrera in spite of incontrovertible evidence that torture was used to extract the confession that led to their conviction.

Many others in Mexico who are in prison based on forced confessions will likely not be able to benefit from Mr. Fox' personal intervention in the same way. What is required to ensure justice for all Mexican citizens is a reliable justice system that ensures all those that go before it are treated fairly.

This misuse of the justice system to carry out political oppression under a facade of legality also has a disconcerting flip side. The same justice system that can be such an effective tool of repression is a dismal failure in ensuring justice for victims of crime. It is famously inept at enforcing laws and catching the real culprits of criminal acts. As one of Mexico's most prominent criminologists, Rafael Ruiz Harrell, recently argued in a study done for Mexico City's human rights commission, impunity is the rule, not the exception. He found that in 1999, the last year for which figures are available, the Mexico City Attorney General - the agency that, incidentally, is responsible for investigating Digna's murder - was able to solve only 6.5% of crimes reported to it. Other prosecutorial agencies, including the Federal prosecutorial office that the Fox Administration inherited, exhibit similarly poor performance. And the reason is not that Mexico's crime rates are far above international averages - they aren't.

One area in which authorities have been particularly ineffective is arresting and prosecuting those who threaten, attack and kill human rights defenders. Human rights lawyers and activists play a vital role in any society, particularly one that is seeking to move towards increasing respect for human rights and the rule of law. This important role is now widely recognized, and special protections for human rights defenders are enshrined in the 1998 UN Declaration on Human Rights Defenders. A review of investigations of the 1999 threats and attacks against Digna and the PRODH suggests that investigators did little to pursue important leads.

Rights defenders in Mexico - as well as their supporters abroad - have long said that their best protection would be to apprehend, prosecute and jail their attackers -something that until now Mexican prosecutors have lacked the will and the capacity to do. Digna's case is accordingly a test for the new Mexican government and the criminal justice system, which have been thus far ineffective in protecting the rights of human rights defenders. As Mariclaire Acosta said, a credible investigation of Digna's murder is crucial to generate confidence in the Mexican people about the effectiveness of their law enforcement system. Improving criminal justice and ensuring that attacks on human rights defenders are vigorously investigated and prosecuted is one of the greatest challenges facing President Fox.

A second and related challenge facing the Fox Administration is how to address the role of the military in law enforcement. Digna herself frequently denounced abuses carried out by military personnel against her clients, including the recently released environmentalist activists. Mexico's official human rights commission concluded more than a year ago that soldiers illegally detained and tortured Montiel and Cabrera, and planted the evidence which supported drug and weapons charges against them. Mexico City justice officials are now saying that the Ochoa investigation may link Digna's murder to the military. Regardless of whether this theory ultimately prevails, there is no doubt that the involvement of military authorities in law enforcement, which Digna vigorously denounced, remains a major obstacle to a significant improvement of human rights in Mexico. Faced with a corrupt and decrepit police apparatus, many Mexican states and municipalities increasingly rely on soldiers, despite the fact that international bodies have repeatedly called for the demilitarization of law enforcement in Mexico. Not only are soldiers poorly trained and equipped for policing work, they are seldom brought to justice for the abuses which predictably - and frequently - occur.

As UN bodies have found, soldiers are generally immune from civilian justice, and tend to be protected by military justice, which is seen to be even less credible than its civilian counterpart in investigating, prosecuting and punishing rights abuses. President Fox, who was elected on a platform of reforming state institutions, must spearhead the creation of an effective, modern law enforcement system that subjects all crimes, except those fitting a strict definition of military offenses, to fair and effective civilian jurisdiction. The U.S. should strongly encourage and cooperate in any efforts the Fox administration undertakes to pursue such a strategy.

A third vital area in which President Fox must work to propel his country toward real progress on human rights in the area of criminal justice is to ensure credible reporting of rights violations. Human rights commissions set up from 1990 onward, beginning with the National Human Rights Commission and followed by state level commissions, have frequently been ineffective in documenting, publicizing and making findings on rights abuses and institutional weaknesses. Because there is currently no effective mechanism in Mexico to compile countrywide data on torture and other serious human rights violations, Mexicans lack reliable information about the scope and urgency of the problem posed by grave abuses such as torture. Statistics of the National Human Rights Commission showing a decline in recent years of complaints of torture have led some officials to suggest that this problem is no longer a serious concern. The Fox Administration should complement its admission that torture in criminal justice remains pervasive by taking steps to ensure that reliable statistics on its incidence are gathered and communicated to policy makers and the public.

These are just a few of the many areas in which significant, systemic change must occur before Mexico's human rights situation is likely to appreciably improve. I would encourage Members of the Caucus, and all Members of Congress, to ensure these pressing human rights concerns are raised by U.S. officials in all dealings with the Mexican government. United States concerns over a range of pressing bilateral issues, from narcotrafficking and energy policy to security cooperation in the wake of the September 11th attacks, will be better addressed by a neighbor whose institutions function consistently and reliably, founded on principles of respect for human rights and the rule of law.

Digna Ochoa, as Kerry Kennedy put it, spoke truth to power. Her courage, and that of her colleagues who continue her work in Mexico, must be matched now by resolve and concrete action on the part of the Fox Administration to build a society based on justice in which human rights defenders can to do their important work in a climate free from fear and intimidation.

Thank you.