The ICJ called today on the Mexican Parliament to reconsider and amend the laws it adopted on 8 September which effectively give control of public security and law enforcement functions to the Mexican Secretary of Defense (SEDENA).
“Under general rule of law principles, inherently civilian functions like policing and law enforcement, should be placed under civilian and not military authority”, said Carolina Villadiego, ICJ Senior Legal Adviser for Latin America. “Military institutions should be reserved for military functions and purposes.”
Also, the ICJ considers that these reform measures likely violate Mexico’s Constitution and should come under judicial review by the Federal judiciary, including the Supreme Court of Justice if Parliament fails to revisit its action. Bodies such as the National Human Rights Commission (Comisión Nacional de Derechos Humanos) have standing to challenge the constitutionality of such legislative measures.
On 8 September, the Parliament approved a series of legal measures, initially proposed by Mexican President Lopez Obrador, that give control of the Guardia Nacional, of civilian nature, to the SEDENA. These reforms allow the SEDENA to participate in the formulation of the national strategy of public security; to integrate the chain of command of the Guardia Nacional when the President asks it to participate in military actions; to draft the organizational, procedural and public service manuals of the Guardia; to prepare the operational programs and strategies of the Guardia; and to organize the structure of the Guardia in the Mexican territory. Furthermore, the Guardia Nacional may now permanently assist the Armed Forces on request of the Executive authorities.
The Guardia Nacional was established in 2019 on the initiative of President Lopez Obrador, consolidating into one unit the previous bodies of the Federal Police, the Military Police and the Naval Police. Among the various law enforcement functions, it provides public security under the country’s federal jurisdiction. Its creation was promoted as having a civil force in charge of public security.
The recent legislation gives effective control of the Guardia Nacional to the defense sector and involves this Guardia Nacional in military actions. These provisions appear to violate the Mexican Constitution that establishes that public security institutions, including the Guardia Nacional, are civil institutions.
Acting UN High Commissioner Nada Al-Nashif has expressed her concerns about these developments, recalling that:
“Human rights mechanisms have clearly stated that armed forces should only intervene in public security temporarily, in exceptional circumstances, as a matter of last resort, and always under effective supervision by independent civilian bodies.”
Similarly, the Inter-American Commission of Human Rights urged Mexico to reconsider the changes, recalling that in accordance with InterAmerican standards: “All public policies concerning citizen security must involve institutions that are independent from military forces, with operational and professional civilian police structures in place to effectively enable crime prevention and civilian protection, while ensuring State respect for and protection of human rights”.
In addition, the Inter-American Court of Human Rights, in a case against Mexico, (Alvarado Espinoza et al. vs. Mexico), had previously held that: “(…) as a general rule, the Court reaffirms that maintaining internal public order and public safety should, above all, be reserved to civil police agencies. However, when the armed forces exceptionally intervene in security tasks, their participation must be:
- a) Exceptional, so that any intervention is justified and exceptional, temporary and restricted to what is strictly necessary in the circumstances of the case;
- b) Subordinated and supplementary to the work of civil agencies, and their tasks may not extend to functions inherent to the institutions for the administration of justice or the judicial police;
- c) Regulated, by legal mechanisms and protocols on the use of force, under the principles of exceptionality, proportionality and absolute necessity and based on the relevant training, and
- d) Supervised, by competent, independent, and technically capable civil authorities”.