After two years and two months, the Mexican Upper Chamber of Congress approved the National Law Against Forced Disappearance and Disappearance by Non-State Actors. This has taken place four decades after the disappearances of the 1970s and the widespread practice by state and non-state actors since 2006. The families of the disappeared have stated that this law does not do enough to search for the disappeared and give families access to justice. However, they are willing to support the law in order to introduce further changes to it once it is approved. In what follows, there is a translation of the families’ assessment of the law passed by the Senate.
Advances from the point of families
- The law meets international human rights treaties standards in relation to the classification of the crime of disappearance by state and non-state actors as well as measures to avoid impunity such as imprescriptibility of the crime of disappearance and extradition.
- It establishes that government bodies and mechanisms have to search for the missing ones. This is a right that all people have when their whereabouts are unknown.
- It creates the National System of Searching for the Disappeared as well as a Commission that has the ability to look for the missing ones across the country even if there are cases that fall under local jurisdiction. Also, the law also stipulates the organization of local commissions.
- According to the law, the commission can organize its own groups to search for the disappeared, create working groups and request the participation of national and international forensic experts.
- It creates the units of context analysis and information management within the commission to generate intelligence information and capacity-building to compare information in registries of missing ones.
- It creates the National Registry of Missing Persons as well as information platforms (search registries, non-identified dead persons, graves registries, forensic data banks) and the use of technology for the effective search and the location of the whereabouts of missing people.
- It creates a national program of search and exhumations to establish public policy and principles to organize authorities at all levels in the country to search, locate and identify the disappeared. It also allows families of victims to participate in this.
- It recognizes the responsibility of high hierarchies in the chain of command in the crime of disappearance.
- It creates a National Citizenship Council, which includes a Committee of Evaluation and Monitoring of the Implementation of the law. It increases the number of representatives of families and civil society within this Council as well as in the National System to Search for the Disappeared. This council has the right to request information to any member of the National System of Search.
- The National Commission can issue recommendations, inform policymaking and coordinate among different government bodies in order to expedite the processing of cases of disappearances of immigrants.
- The Commission also has the ability to create specific working groups for regional searches as well as sign agreements of collaboration with national and international institutions.
- The law for the first time places emphasizes the Dirty War of the 1970s and sets a plan to allow families of the victims of disappearance during that time to access justice and truth.
- It establishes general principles for the declaration of absence in cases of disappearances.
- It establishes special rights for the victims of disappearance in addition to what it has already been indicated in the General Law for Victims.
Shortcomings of the law
- The Commission does not have a police, and therefore lacks the capacity of enforcement and sanctioning, even though the law allows this body to request the assistance of the police.
- For this reason, the Commission will not be able to undertake investigatory activities. It will have to request the assistance of the investigation police, which are currently ineffective in the search for the disappeared.
- It still includes the term “non-located” which disguises the human rights violations behind the crime of disappearance.
- While the law allows the commission to search for the missing ones in all the country, it does not stipulate which state authority will initiate the search or the ways in which the Commission can undertake or participate in looking for the missing ones in case the work of state authorities is not enough, particularly at the local level.
- The law does not account for circumstances where the person in charge in the chain of command must had knowledge of the crimes of disappearance committed by its subordinates and did not take the appropriate measures to prevent it.
The Senate has moved the law to the Chamber of Deputies. Unfortunately, the members of this chamber as reusing the law as a leverage for upcoming local and national elections. For that reason, they have postponed the discussion of the law until the next Congressional session.