:: Special Report on the Case of Acteal (August 30, 2009)

The Supreme Court (SCJN) Ruling: an irreproachable ruling judicially, a highly questioned decision based in the historical and actual context

On August 12, the chamber of the Supreme Court of Justice of the Nation (SCJN) granted an appeal to 26 indigenous men incarcerated for more than 11 years and convicted of the killing of 45 indigenous people, who on December 22, 1997 were killed in the community of Acteal, municipality of Chenalhó (in the highlands of Chiapas). Twenty of them were freed the next day, while the other six will repeat the judicial process which condemned them. There remain 31 cases to be heard by the SCJN in the future, which could lead to similar rulings.

With four votes in favor and one against, the ministers of the high court made the ruling that the convictions were based in evidence obtained illegally and in testimonies fabricated by the Attorney General of the Republic (PGR). They emphasized that the PGR had not respected the rights of the prisoners to due process and adequate defense.

The ministers who voted in favor, see this ruling as a resounding advance against impunity and fortifying the state of rights in Mexico. For example, according to minister Juan Silva Meza , the decision of the Court was a good opportunity to send a clear message to the authorities in charge of fighting crime, in the sense that they need to scrupulously respect constitutional rights and, at the same time, respect human rights; in addition they should work to end this type of excessively long process, which unjustly kept people in prison.

The defenders of the prisoners, members of the Center of Investigation and Economic Teaching (CIDE) underlined the paradigmatic nature of the case, in the voice of José Antonio Caballero in the newspaper “El Universal”: “… the injustices suffered by the indigenous who we are defending are not exceptional. On the contrary, they are frequently seen in the penal processes which happen in our country”.

On the other hand, the Civil Organization Las Abejas (which the victims of Acteal were members of), denounced the decision saying: “Because of the unjust machine of the Supreme Court of Justice of the Nation, we have been taken almost 12 years backwards. The little justice that had been achieved for Acteal, the SCJN has in a few days converted to impunity”.

The Human Rights Center Fray Bartolomé de las Casas (CDHFBC), responsible for the defense of Las Abejas, stated that : “The SCJN released a judgment about the manner that judicial processes occur and it makes public “an important historical issue for the Mexican judicial system” being that instead of carrying out real justice which strengthens the “State of rights”, it has opted for the freeing of paramilitaries, who were clearly identified as the material authors by the survivors and witnesses of this crime against humanity”. They stressed that: “The resolution adopted by the SCJN increases the deterioration of the State institutions which ought to guarantee access to justice, instead promotes impunity, and are used by the de facto powers to conceal this crime of the State and protect the intellectual authors, documented by this Center and by many local, national, and international organizations”. (Communiqué from Aug. 15, 2009)

A reader, above all from outside Mexico, could wonder how the same event could trigger such contradictory perceptions.

The Situation before the resolution

On December 22, 1997, in Acteal, a massacre took place in which 45 indigenous tsotsil people were killed (16 children, 20 women of whom 4 were pregnant, and 9 men) members of the Organization “Civil Society of Las Abejas”; they were killed by a group of armed civilians while they were praying in the chapel in their community. The investigation by the PGR resulted in the conviction of 83 indigenous men from neighboring communities, who were considered material authors because they directly participated in the attack. The CIDE assumed the defense of 57 of them. In addition, 14 low level government officials served between three and eight years in jail for homicide and injuries because of neglect or for illegal possession of military grade weapons. However, higher officials and members of the Army have never been investigated for their implication in the case.

Regarding the material authors, the CDHFBC in a communiqué before the resolution of the SCJN emphasized: “It is important to remember in the location where the massacre took place there was an encampment of displaced persons, the people there had left to escape the paramilitary violence in the region; there were denunciations and documentation leading up to the massacre, people who were forced to leave their communities because their lives were threatened, many of them were physically assaulted and their homes were burned and robed by members of their own communities, including their own family members, who had been manipulated by members of the Army, and formed part of the paramilitary group which later committed the Massacre of Acteal. Since that point, there exists clear recognition of those who participated in the events”. They warned that with “Arguments of ‘lack of due process’ (the SCJN) is ignoring the testimony of witnesses who clearly pointed to those responsible for the massacre”.

According to the CIDE, there are five of the accused who confessed and stated the names of four other indigenous who remain free. They maintain that they have not managed to prove the guilt of the rest of the prisoners.

A decision representing a judicial advance?

In strictly legal terms, the decision of the SCJN is irreproachable, and could be seen as a significant step towards addressing some of the structural flaws in the judicial system, and the evils of impunity in Mexico. It is based in the presumption of innocence and in the principles of “due process” which should prohibit evidence obtained illegally from being used in a trial. The minister José Ramón Cossío explained: “for the Chamber the legal issues are the only ones that count… That is, if in giving a penal sentence we could use non-legal reasons, than any rule would be relevant.”

It is important to clarify that the Supreme Court did not determine those freed were innocent, instead, in the words of the one of the ministers: “What was determined is that the prosecutors did not follow due process, which is not a pronunciation about whether or not they are innocent”. Because of this fact, many people have denounced the disconnect between an unquestionable judicial response and on the other hand, the demand for justice in the case.

Although the resolution signifies a “formal” advance, there remain two major issues related to impunity: on the one hand, although the resolution did affirm that the investigation carried out by the PGR in the case of Acteal was deficient and illegal, it is not clear what kind of follow-up could happen regarding the possibility that the Public Prosecutors Office committed crimes at the beginning of the case. On the other hand, if those freed were guilty, than they only served a third of their sentences; and if they are innocent, contradicting the testimonies of the survivors and families of the victims, it does not address the issue of who committed the massacre.

A decision questioned from the historical, political context

Many analysts an human rights centers have questioned the resolution of the SCJN for not taking into account the context in which the massacre in Acteal occurred and the war which continues in the state of Chiapas. They claim that the re-opening of the case is an attempt to re-write history and maintain the theory that what occurred at Acteal was a confrontation between indigenous people and not a crime of the State, in an attempt to protect the intellectual authors of the massacre.

In a report published as part of the Tenth Anniversary of the massacre (Impunity and the responsibility of Mexican authorities in the Acteal case), SIPAZ explained: “It is impossible to avoid outlining the situation in the State of Chiapas at the time of the massacre, acting as if the killings were an isolated incident. From 1995 onwards, and while the San Andrés dialogs unfolded, the EZLN and several civilian organizations began to denounce the State’s simultaneous application of a counterinsurgency strategy in the North of Chiapas ‑ the promotion and protection of the group “Peace and Justice”, causing the displacement of thousands as well as more than 100 forced disappearances and assassinations. Months later, this strategy was implemented in the Highlands and Jungle Regions of Chiapas, taking on even more clearly the characteristics of “low intensity warfare.” The government seemed to be banking on the possibility that the EZLN would lose the support it enjoyed at a local, national and international level through a prolonged war of attrition comprised of political, military, economic, legal and communication dimensions.”

Supporting what human rights organization have been denouncing for more than a decade, in August official US documents were declassified by the National Security Archive, indicating that there was direct support for the paramilitaries from the Mexican Army as part of a counterinsurgency campaign against Zapatista support bases in Chiapas. The US Defense Intelligence Agency (DIA), part of the Pentagon, confirmed that paramilitary groups “were under the supervision of Mexican military intelligence during the dates in which the massacre at Acteal occurred, with presidential authorization”.

Concerns for the present and the future

In the days leading up to the ruling, Amnesty International urged the Mexican authorities to carry out exhaustive investigations, with all necessary guarantees in order to find out the truth and to convict those guilty at all levels, including high level functionaries and members of the army suspected of involvement in the massacre because of their neglect or assent, AI stated “Without justice, you are condemning the community to the possibility of more violence”.

As part of his visit to Acteal on August 17, the Representative in Mexico of the United Nations High Commission on Human Rights, Alberto Brunori stated: “One of the consequences of the fact that the authorities responsible for obtaining and administering justice violated due process rights … is that the case of Acteal could remain unresolved, which is unacceptable”. He also urged the Mexican authorities “to carry out meticulous, independent, and impartial investigation; to guaranteed the individual and collective right to know the truth about the circumstances surrounding the massacre; and to take measures to make sure that the victims receive reparations equal to international human rights standards, including adopting protective measures”. He also expressed concern “for the possibility that the tension in the region could intensify, and because of this, I call for the state authorities to take the necessary measures to guarantee the lives and safety of the people in the region”.

In a communiqué of Las Abejas, read as part of the visit of Brunori, they stated “We have demonstrated our concerns for our lives and safety, as witnesses we remember that when we confronted the paramilitaries in the prison, they threatened us, saying that when they were free they would get even with us. But we know that the security measures that the government usually provides are the police and the military, and these groups are a danger for our communities and above all for the women. What is acceptable is if they send national and international human rights observers. Under no circumstances would we accept people from the government, because of experience we know that they are only coming to watch us and get information about our organization and struggle, so that later they can plan strategies to divide us and dismantle our communities”.

The Human Rights Center Fray Bartolomé de las Casas had already stated before the resolution: “The ruling of the Court, will immediately put the survivors and family members of the victims of Acteal in danger, and it will risk the social peace in the region. We must not forget that the communities of Chenalhó, pointed to as participants in the counterinsurgency campaign, still have the weapons that were used at the massacre of Acteal, and so the liberation of the paramilitaries, who are prisoners now, could lead to the regrouping and reactivation of those groups in Chiapas”.

Demonstrating a certain political realism, the government of Chiapas has tried to prevent the return of those freed to the municipality of Chenalhó in order to avoid confrontations and aggressions, offering them land, houses, and work. Las Abejas denounced the actions saying “After the liberation of the paramilitaries, we see many thing becoming clear, such as the actions of the government of Juan Sabines which supports the now free killers, so that they might live in ‘glory’. We the survivors of Acteal, sum up these events “if you want gifts, bonds for houses, money, and land?, kill children, pregnant women, and you’ll have all you need. Deeds not Words!’ In addition, President Calderón says that the government will not permit another Acteal, but it accepts the decision of the ministers of the SCJN. So, why do they agree with the liberation of the killers of Acteal, so that they, with the help of their friends in the communities, can add the witnesses to the massacre of Acteal”.

SIPAZ has worked in the municipality of Chenalhó since 1997. From the information we have received in the last few weeks through interviews and visits, we are concerned about the tension which are mounting in the zone with new military and police patrols, as well as with the desire of those freed to return to Chenalhó. In addition, this resolution and its consequences could be very significant with the context of the unresolved armed conflict in Chiapas, which affects not only the municipality of Chenalhó but the entire state.