On July 1, Mexico elected a new president, Andrés Manuel López Obrador, who promised a dramatically different approach to the country’s 11-year drug war. While most of the news accounts have focused on his proposed amnesty for low-level participants, President Obrador has suggested something far more radical—transitional justice. While details for the December “Peace and Reconciliation Plan for Mexico” are scarce, I want to consider the core components of transitional justice and how Obrador’s plan might fit with them.
Transitional justice is often defined as “an attempt to build a sustainable peace after conflict, mass violence, or systemic human rights abuse.” But, for those unfamiliar with practices on the ground, is there, in fact, a conflict, mass violence, or systemic human rights abuse in Mexico? For many countries, a war on drugs is just a metaphor, and the idea and mechanisms of transitional justice might not translate well. In Mexico, however, the war on drugs and drug cartels is a real one carried out by the military with substantial casualties. Over 11 years, approximately 200,000 persons lost their lives. 2016 was a particularly brutal year with the death toll of the Mexican drug war outpacing all conflicts except the one in Syria. While the death toll alone is not prima facie evidence of an armed conflict, it is part of what has led many scholars, including me, to conclude the events in Mexico constitute an armed conflict under international humanitarian law. To be more precise, an internal armed conflict governed by Common Article 3 of the Geneva Conventions is a “protracted armed conflict occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions].” Such conflicts must satisfy a minimal intensity threshold and the non-state actors must have organized armed forces. Given the nature and sophistication of the fighting, along with various cartel’s territorial control of parts of Mexico, a solid case is to be made that the drug war is a real war under international law.
In addition, the Mexican government committed a significant number of serious human rights violations as it pursued the drug war. Such abuses include widespread extrajudicial killings, torture, and disappearances. Most perpetrators go unidentified, and when identified, unpunished. And, of course, the drug cartels have been spectacularly brutal. They fight amongst themselves over trafficking routes and local drug markets and within themselves for control of the cartels as well as against the military and the police and the civilian population. They have undermined the political process by intimidating the public and murdering politicians who refused to turn a blind eye to their activities. The cartels also share with the government an incredibly low prosecution and punishment rate, leading many to lament Mexico’s “crisis of impunity.”
One might view the 2018 presidential election as a referendum on the drug war. While other candidates pledged either to maintain the status quo or to amplify and escalate the military’s role, now President Obrador suggested a different path. He spoke, albeit briefly, about transitional justice. And with his election, will Mexico use the tools of transitional justice to make a significant break with the past practices and usher in a new era? Transitional Justice can include multiple modes—criminal, historical, reparatory, administrative, and constitutional. I focus on criminal, historical, and reparatory as these are the components most apparent in Obrador’s existing statements.
In order to mark a break with the past, Mexico needs to “instantiate and reinforce normative change.” In lay terms, it needs to undo past political violence with investigations, trials, and other shared public practices that identify past behaviors as wrong and not to be repeated. While the specifics vary across transitional societies, investigations and public trials of high-profile individuals in the military who have developed policies for, ordered, and engaged in wrongdoing might be a good start.
If the state also wants to provide amnesty for low-level participants in the drug cartels, such a move is neither inconsistent with nor a barrier to high-profile prosecutions. As currently envisioned, the amnesty would exclude violent criminals and “only those committing to rehabilitation and to actively participating in the reconciliation process—for example attending mediation sessions with victims—would be able to enter the amnesty program.”
In fact, the hope might be that amnesty would encourage people at the bottom of the chain to provide information that would allow for prosecutions further up the chain. While people at the bottom are unlikely to have information that would directly implicate kingpins, it may be that amnesty deals would encourage flipping substantially up the chain.
That said, prosecutions are not the only way to enable isolation and disavowal of wrongs. Colombia offered amnesty to the FARC in exchange for disarmament and relies on non-prosecutorial processes to disavow the past violence. But I’m skeptical that Obrador wants to ever offer amnesty to high-level cartel members and even more skeptical that such members would be interested in disarmament, at least at this stage. Perhaps if amnesty is coupled with drug decriminalization and a call for disarmament, that might change the calculations of those at the top of the drug trade. But even if Obrador legalizes marijuana (a realistic possibility) and offers amnesty to those higher up in the drug cartel hierarchy (less likely), he is still a very long way from decriminalizing the hard drugs that provide cartels with much of their profits.
Equally important to transitional societies are a displacement of the past regime’s vision of the truth and a construction of a new collective memory. Trials provide one path by which a new history can be constructed and stamped with the imprimatur of the new state. But trials are not the only path. Victims’ groups have proposed coupling the amnesty with a truth commission to get information about the disappeared. President Obrador has pledged to create a Sub-Secretary of Transitional Justice, Human Rights and Attention to Victims. This division is to “create Truth Commissions to investigate emblematic cases like the disappearance of 43 students at the Ayotzinapa Rural Teachers’ College in 2014, as well as extrajudicial killings in places like Tlatlaya” though the design of such commissions is still up for debate. Other possibilities include opening up archives and other state records regarding the prosecution of the drug war.
Another component of transitional justice is the use of reparatory justice to “provide official recognition of victims’ rights” without individuating responsibility. Instead, under transitional justice, the state undertakes a collective responsibility in order to show a break with the past and a movement to a more liberal state. Here, President Obrador has suggested economic development, job creation, and educational opportunities to address the root causes of crime. Depending on their framing, these proposals might also be used as reparative tools—particularly if they are seen as a way for the state to acknowledge that its prior crime fighting tools were unduly harsh and oppressive.
As President Obrador won’t take office until December, much time remains to consult with those involved in transitional processes in countries like Colombia, Sierra Leone, and South Africa. I would encourage those involved in designing and implementing the Peace and Reconciliation Plan to get a sense of what succeeded, what failed, and why, but also to be ever mindful that transitional justice is not a one-size-fits-all set of practices. Mexico needs to look inward in deciding what to emphasize and how to best meet the needs of its citizens, but I think President Obrador has presented an interesting proposal that might serve as a good framework for this societal reconstitution.