Confronting Mexico’s Enforced Disappearance Monsters: How the ICC Can Contribute to the Process of R

In 2015, the United Nations Committee on Enforced Disappearances released a report on Mexico, concluding that there is a generalized context of disappearances in the country, many of which would meet the legal definition of enforced disappearance. Despite the recurring pattern of mass disappearances throughout the country in the last decade, including the recent disappearance of forty-three students in Iguala, Mexico has not convicted a single person for an enforced disappearance committed after 2006. Equally appalling is the fact that 40 percent of missing person cases in the country never get opened. Mexico has begun a process of reforming its criminal justice system, but a lack of marked progress has largely prevented the country from adequately addressing this impunity. This Article will argue in favor of pursuing an investigation at the International Criminal Court (ICC). It will demonstrate that, if the Office of the Prosecutor (OTP) were to open a preliminary examination in Mexico, the OTP would likely decide to initiate an investigation, even if enforced disappearance were the only crime considered. It will further argue that pursuing an investigation would likely contribute to Mexico’s reform process through the OTP’s use of positive complementarity, a strategy by which the OTP supplements ongoing domestic criminal proceedings in order to help ensure effective investigations and prosecutions. Not only could the OTP use the threat of opening an investigation to pressure Mexican authorities to enact reform but it could also adopt proactive measures to help accelerate that progress. This Article will propose three innovative measures that the OTP could use in Mexico as part of its positive complementarity strategy to bring Mexico closer to confronting its enforced disappearance monsters.

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