As we saw in the last installment of this series, there are notable disparities between the number of disappearances reported in the National Registry of the disappeared from 2018-2020 and the number of investigations opened for disappearance crimes by some prosecutors’ offices. In this installment, we look at additional challenges faced in disappearance investigations.
First, in early 2021 WOLA asked the National Prosecutor’s Office (FGR) and the 32 state prosecutors’ offices if they had created the basic investigative infrastructure mandated by the landmark General Law against disappearances. Although the General Law has been in force for over three years, a significant percentage of responding states reported lacking some part of this infrastructure.
The basic investigative infrastructure
In particular, the General Law mandates that each state and the federal FGR create special prosecutors’ offices for disappearances with specialized knowledge and investigative tools and procedures. Each of these offices must have a Context Analysis Unit to investigate patterns and contextual information on disappearances, a crucial component of improving investigation and punishment of this phenomenon.
Of 23 state prosecutors’ offices that responded to WOLA’s question on the subject, most have special prosecutors’ offices for disappearances, as does the FGR. However, eight (roughly one-third of state respondents) either did not have a special prosecutor’s office or had a unit instead of a special prosecutor.
Further, at least 12 of the responding states lacked the dedicated Context Analysis Unit mandated under the General Law. This is significant because analyzing patterns is crucial for identifying, dismantling, and punishing the criminal networks that carry out disappearances: if cases are studied in isolation, authorities will miss crucial information necessary to solve them and to contribute to preventing future crimes. The formal creation of Context Analysis Units is, of course, no guarantee of effective investigations–but the fact that many states have failed even to comply with this requirement raises concerns about the priority and resources being dedicated to tackling disappearances.
The General Law also gave rise to the Uniform Investigation Protocol for disappearances, applicable at all levels. The Protocol requires that each disappearance crime investigation have an investigation plan, that is, a calendarized plan of investigative activities meant to confirm or discard the theory of the case.
As of early 2021, of 13 state prosecutors’ offices that answered the question, only seven reported that all of the investigations open in their special prosecutors’ offices had investigation plans as required by the Uniform Investigation Protocol. Once again, an investigation plan is not, by itself, a guarantee of success. However, not even having a plan increases the risk that, as has traditionally occurred in Mexico and as our counterparts continue to report in cases that they accompany, investigations:
- Fail to gather all the relevant evidence.
- Fail to follow up on lines of inquiry.
- Become formalistic collections of inter-institutional information requests.
- Are plagued by long periods of inactivity.
- Depend on the victims’ families themselves to obtain and supply information.
The data reported to WOLA by prosecutors’ offices also show particular obstacles in the investigation of cases of enforced disappearance. Contrasting the number of enforced disappearance investigations opened from 2018-2020 (in states that provided information) with people reportedly disappeared during those years paints the following picture (note that federal data cover only the FGR’s Special Prosecutor for Disappearances):
Investigations for enforced disappearance 2018-2020 and people disappeared 2018-2020 (who remain disappeared) according to the National Registry
Under the General Law (and international human rights law), enforced disappearances can be committed both by state agents directly and by private actors acting with the authorization, support, or acquiescence of a state agent. Thus, in states where few or no investigations are opened into enforced disappearance, the overall investigative theory would seem to be that disappearance crimes occur without participation—not even acquiescence—by state agents. However, another explanation is that state agents’ participation is not being recognized or posited as the theory of the case, including forms of support and tolerance by the State in cases of disappearances carried out by private actors. There are indications that these types of omissions at least partly explain the numbers reported to us.
Disappearances in Mexico State
Enforced disappearance complaints 2020, Mexico State human rights commission
Enforced disappearance investigations 2018-2020, Mexico State prosecutor’s office
For instance, Mexico State reported to WOLA having received no complaints of enforced disappearance from 2018-2020 and having opened no investigations for this crime during those three years. Yet, Mexico State’s human rights commission opened 50 complaints of enforced disappearance in 2020 alone.
In response to WOLA’s inquiry regarding how many complaints had been received and how many investigations opened for enforced disappearance in Coahuila from 2018-2020, Coahuila’s Special Prosecutor for Disappearances first stated that it did not classify cases as enforced disappearance during the investigation because “even though the complaint itself or the narration of events, or statements and testimonies gathered in the investigation, videos, or any other relevant evidence, may indicate the participation of members of the security forces, it is also true that one cannot be certain of this until the investigation finishes and such participation is indubitably demonstrated,” that is, when the case is ready to be brought to trial. The Special Prosecutor went on to state that, “it is well known that many times there are only vague indications that police forces may be implicated, and also another possibility is that [the perpetrators use] fake uniforms and vehicles.” Following this explanation, Coahuila’s Special Prosecutor reported having opened 11 investigations for enforced disappearance from 2018-2020 and having brought no charges for this crime. (The same office reported having brought charges in ten cases of disappearance by private actors.)
THE DISGUISE ARGUMENT
It bears noting that the argument that uniformed perpetrators of disappearances are likely to be private actors in fake uniforms was the defense invoked, unsuccessfully, by Mexican authorities before the Inter-American Court of Human Rights to try to avoid being held responsible for enforced disappearance in the emblematic Alvarado case in Chihuahua, mentioned in the previous installment. The Inter-American Court rejected this argument in its 2018 judgment and found the Mexican government responsible for enforced disappearance, but the case remains unpunished.
Jalisco’s Special Prosecutor for Disappearances similarly responded to WOLA’s request for the number of enforced disappearance complaints and investigations by explaining that it was providing only those cases in which state agents’ participation or acquiescence had been “already fully proven… and in which charges have been brought before the competent [judicial] authorities…” The Special Prosecutor reported charges brought in 14 cases of enforced disappearance from 2018-2020, with 29 people placed on trial. In follow-up responses, the same office provided information on cases from 2018-2020 that were open as of June 2021 for disappearance by private actors (1,099) and for missing or disappeared persons (3,448), but reported no open investigations for enforced disappearance, specifying once again that it could only report the number of cases in which charges had already been brought for this crime (this time reporting a total of 15).
An undue reticence to classify cases as enforced disappearance at the investigation stage may increase the risk of inadequate investigation of this line of inquiry and publicly mask levels of reported state agent participation or acquiescence in disappearances–especially since, on average, most disappearances do not lead to trials.
Creating the investigative offices mandated by the General Law, ensuring that all disappearances have an investigation plan, and classifying disappearance crimes correctly based on the facts of the complaint and circumstances of the case are all relevant steps to increase the number of cases that are solved and brought to trial.