Introduction
The subject of migrants reported missing on their journey or within countries of destination is receiving increasing attention from international organizations,Footnote 1 scholars,Footnote 2 non-governmental organizations (NGOs)Footnote 3 and civil society associations.Footnote 4 Despite growing interest, however, the phenomenon is still under-studied and certainly under-reported, due to the exceptional challenges that it poses in terms of analysis and documentation and the practical difficulties in search operations and in the adoption of effective legal and humanitarian responses.
The very nature of the phenomenon of missing migrants implies the involvement of different countries. On the one hand, this entails the existence of different applicable jurisdictions and legal provisions, and the need for special measures of cooperation, including the activation of diplomatic and consular channels. On the other hand, families of missing and disappeared migrants face extraordinary obstacles in their struggle to determine the fate and whereabouts of their loved ones and, where appropriate, to obtain justice and redress for the harm that their relatives may have suffered. Hindrances vary from the impossibility of travel due to lack of resources or documents, to the de facto inability to file complaints or reports in other countries because of the pitfalls of domestic legislation that does not recognize any legal standing.Footnote 5 The existing legal framework and the mechanisms in place to facilitate search operations or the filing of complaints have so far proved incapable of fully seizing the transnational scope of the phenomenon and of adequately addressing the impediments described, thus demanding the adoption of new tools and innovative responses.Footnote 6
Furthermore, the universe of migrants reported missing is a complex one: there are victims of fatalities, natural calamities or catastrophes, and unidentified victims of shipwrecks, but also victims of crimes that may include human-smuggling and human trafficking, arbitrary executions and massacres, as well as enforced disappearance. With regard to the latter, in its 2016 annual report, the United Nations (UN) Working Group on Enforced or Involuntary Disappearances (WGEID) included a specific section on the subject of enforced disappearance in the context of migration, outlining the main issues that it has identified surrounding the phenomenon.Footnote 7 Some of the issues acknowledged in the report are migration caused by enforced disappearances; enforced disappearance of migrants (including enforced disappearances for political reasons, cases occurring during the detention of migrants or the execution of deportation procedures, and enforced disappearance of migrants by private actors operating on behalf of, or with the direct or indirect support, consent or acquiescence of, the State); factors contributing to the enforced disappearance of migrants; and State obligations in the context of the enforced disappearance of migrants.Footnote 8 The WGEID observed that
the transnational nature of migration certainly complicates the efforts of the families of migrants who wish to obtain information concerning a disappeared relative. In many instances, it is reported that there is no established protocol for family members to denounce a disappearance abroad, in the country where the crime occurred. Similarly, there are no forensic data banks to register DNA for the disappeared or evidence contributing to the research of remains. If such mechanisms exist, they are often said to be ineffective, not ensuring that family members living abroad may access them. … [B]roader obstacles … may complicate the search for the truth, such as language and cultural barriers, lack of cooperation from the country of origin, corruption, lack of financial means, the impossibility of travelling to the country where the disappearance occurred, the lack of access to effective legal services, etc.Footnote 9
Given the importance and complexity of the phenomenon, in 2017, the WGEID issued a report entirely devoted to the analysis of enforced disappearance in the context of migration. The WGEID outlined that there is a direct link between migration and enforced disappearance and denounced that the international community as a whole does not seem to be giving the necessary attention to the matter, while States turn a blind eye and prefer to transfer the blame elsewhere, be it to another State or to a criminal group.Footnote 10 Hence, the WGEID pointed out that this phenomenon is a modern-day reality that should not be ignored or underestimated and recalled that under international law States bear the obligations to prevent, punish and remedy enforced disappearance of migrants, and the unique features of migration trigger additional specific obligations in the areas of search, criminalization/investigation, reparation and international cooperation.Footnote 11
While the situation of missing migrants in the Mediterranean region has obtained relatively more attentionFootnote 12 and a number of projectsFootnote 13 to tackle it have been launched (mostly concerning the very specific case of migrants reported missing at sea), the cases of migrants unaccounted for and subjected to enforced disappearance in Mexico are relatively less studied and documented.
This article aims at analyzing the situation of migrants reported missing and victims of enforced disappearance in Mexico and the obstacles faced by their families, who mostly reside in Central American countries. The first attempts to provide efficient legal and humanitarian responses and to put in place effective mechanisms to address the needs of relatives of missing and disappeared migrants will also be illustrated. It is concluded that the current situation in Mexico offers an opportunity to better grasp the specificities of the phenomenon of missing and disappeared migrants and allows an examination of good practices, outstanding practical difficulties and pitfalls.
After examining the scope and nature of the phenomenon of disappearance of migrants in Mexico and the concerns, observations and recommendations expressed in this regard over the past years by international human rights mechanisms, the article focuses on three major initiatives adopted to tackle this scourge and to provide adequate responses to thousands of families in the Americas. First, the Forensic Commission mandated to identify the mortal remains found in mass graves related to three massacres of migrants perpetrated between 2010 and 2012Footnote 14 and to return the remains to their families is presented. Second, the mandate and functioning of the recently established Investigative Unit on Crimes against Migrants and the Mechanism of External Support for Search and Investigation are described. These two mechanisms are taking their first steps, trying to find effective ways to conduct investigations on, among others, enforced disappearance of migrants, in a complex transnational context involving organized criminal groups operating on an international scale. Similarly, these mechanisms are exploring the possibilities of adapting already existing diplomatic and consular channels to the specific situation and to use them as a means to adequately assist the families of missing and disappeared migrants. This article examines some of their most relevant achievements, and in the final part highlights the remaining outstanding practical challenges that need to be faced to eventually provide an effective response to the needs of relatives of missing and disappeared migrants.
Missing and disappeared migrants in Mexico
Mexico is a country of origin, transit and destination for migrants. It is also a country to which migrants return, and this is likely to increase in the near future. The migration flows to and across Mexico are made up of hundreds of thousands of people, including unaccompanied minors, who have the United States, and to a lesser extent Canada, as their destination.Footnote 15 These mixed flows comprise asylum-seekers, refugees and victims of human trafficking.Footnote 16
At the same time, Mexico is undergoing a human rights crisis,Footnote 17 characterized by the perpetration of torture,Footnote 18 enforced disappearancesFootnote 19 and widespread arbitrary killings.Footnote 20 The existence of considerable flows of drugs across the country, as well as of extremely violent organized criminal groups, including drug cartels operating on a regional scale from South and Central America reaching far beyond the northern borders of Mexico, further complicates the picture.Footnote 21 Corruption, infiltration of sectors of the government and armed forces, and impunity are rampant.Footnote 22 As an already vulnerable group, migrants have become an “easy target” for violence and abuse, including enforced disappearance, abduction, exploitation, trafficking and executions.Footnote 23
The existence of a practice of individual and mass abductions of migrants in Mexico was denounced by the Mexican National Human Rights Commission (Comisión Nacional de los Derechos Humanos, CNDH) in two comprehensive reports published in 2009 and 2011.Footnote 24 In 2013, the Inter-American Commission on Human Rights (IACHR) observed the “massive and systematic abductions of migrants in transit through Mexico, perpetrated by organized crime groups operating with the tolerance or even involvement of certain public officials”.Footnote 25 The fact that State agents are directly or indirectly – by means of support, tolerance or acquiescence – involved in the deprivation of liberty of migrants, followed by the concealment of their fate and whereabouts, brings these cases into the realm of enforced disappearance.
In a 2011 report, the WGEID noted:
Undocumented migrants are particularly vulnerable to enforced disappearances due to their undocumented status and the lack of financial resources, effective laws, protection schemes, and judicial remedies available to them. Many of the 150,000 migrants that travel through Mexico every year to the northern border cross through areas where there is crime and they easily fall prey to abduction or extortion. In 2009, [the CNDH] reported 9,578 cases of abduction of migrants over a period of six months, and at least 11,333 migrants were allegedly abducted between April and September 2010, primarily by criminal organizations. According to [CNDH] reports and other sources, public officials from different sectors, including the National Institute for Migration and the municipal, state and federal police forces, had in some cases collaborated with criminal organizations in the abduction of migrants, thereby committing the offence of enforced disappearance. [The CNDH] reported that 8.9 per cent of the documented abductions that occurred over a period of six months in 2010 involved the participation of Government authorities. Until a proper and comprehensive investigation is conducted, it will not be possible to accept that all abductions of migrants are carried out exclusively by criminal organizations or to rule out the possibility of the direct or indirect involvement of public officials.Footnote 26
The WGEID denounced the failure to qualify cases of enforced disappearance as such, with many official reports instead invoking different offences or generic terms (including “missing” and “lost”), which has hindered search operations and doomed the outcome of criminal investigations.Footnote 27 In this sense, the WGEID emphasized that “a potential enforced disappearance may only be ruled out after a complete, independent and impartial investigation. Therefore, the number of cases of enforced disappearance cannot be fully established without proper investigation.”Footnote 28
The existing terminological confusion makes it almost impossible to determine the exact number of missing migrants and victims of enforced disappearance in Mexico. Indeed, for families living abroad, it becomes even more complicated to understand under which category they should – when they can manage to – register their relatives, either as “victims of enforced disappearance”, “abducted”, “not localized” or “missing”. Most of these terms do not find any correspondence in existing legal categories and rather come from common parlance. In November 2017, a General Law on Enforced Disappearance of Persons, Disappearance Committed by Non-State Actors and the National System of Search of Persons was eventually enacted; this legislation explicitly refers to two categories, “disappeared persons” (“personas desaparecidas”) and “not localized” (“personas no localizadas”).Footnote 29 Pursuant to the 2017 General Law, a National Register of Disappeared and Not Localized Persons will be set up and will absorb the information previously scattered among different registers at the federal and State levels. The already vast group of migrants reported missing or unaccounted for in Mexico encompasses those who have been subjected to arbitrary killings and whose mortal remains have not been exhumed, identified and returned to families who, therefore, do not know the truth regarding their loved ones’ fate and whereabouts. Notably, between 2010 and 2012, three massacres where victims were largely migrants were perpetrated in the north of Mexico, in the states of Tamaulipas and Nuevo León. In August 2010, the bodies of seventy-two migrants were found in San Fernando, Tamaulipas.Footnote 30 Between April and May 2011, in the same municipality, forty-seven clandestine graves, containing the remains of 193 persons – including migrants – were located.Footnote 31 In May 2012, forty-nine mutilated bodies, some of which belonged to migrants from Honduras, Nicaragua and Guatemala, were found in Cadereyta, Nuevo León.Footnote 32 At the time of writing, impunity for these three incidents is still prevailing, although there are clear indications that State officials were directly or indirectly involved in the perpetration or concealment of these crimes.Footnote 33 Although not all mortal remains have been duly identified, it is now evident that the majority of victims were migrants travelling from Central America.Footnote 34 Besides the three mentioned notorious cases, many more migrants currently unaccounted for may have been subjected to arbitrary killings in Mexico.Footnote 35 Those who have not yet been identified must be counted among the ranks of missing or disappeared migrants.
In 2014, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions pointed out that
undocumented migrants who transit through Mexico put their lives at serious risk, although it is difficult to obtain reliable figures on the numbers killed. Reportedly, there is a direct link between disappearances and killings of migrants, organized crime, and complicity of law enforcement, investigative and other authorities.Footnote 36
The gravity of the situation of missing and disappeared migrants in Mexico, and their extreme vulnerability, coupled with the inadequate response from State authorities, have been increasingly denounced by NGOsFootnote 37 and international organizations.
Due to the spike in crimes committed against migrants, including enforced disappearance, and the stark increase in the number of missing and disappeared migrants, thousands of families – mostly residing in Central America – are struggling to unveil the truth regarding the fate and whereabouts of their loved ones and to obtain justice and redress.Footnote 38 In this ordeal, they are confronted with unprecedented legal, judicial and administrative difficulties, mostly determined by the complex transnational nature of the phenomenon at stake and the fact that, from abroad, access to justice is further complicated by practical obstacles such as the need for a visa to enter the country and undertake the necessary activities and the overall ordeal of navigating a foreign jurisdiction without adequate assistance. In Mexico, families of disappeared persons in general are left without effective answers from the State, search operations are not effective, and impunity is rampant.Footnote 39 Relatives of disappeared and missing migrants find themselves in an even worse position.Footnote 40 In the words of the IACHR,
de jure and de facto impediments put justice out of reach to migrants in an irregular situation. Most of the crimes and human rights violations committed against them go unpunished, which reveals just how vulnerable they are and how unprotected they are by the system of justice.Footnote 41
A first evident stumbling block is the place of residence of families, added to the fact that they often pertain to socially marginalized groups, living in precarious economic conditions or in remote areas. Filing complaints or reports from their place of residence through diplomatic or consular channels has so far been virtually impossible, as the process is plagued by gaps and delays that make it extremely inefficient.Footnote 42 The existing coordination mechanisms seem unsuitable for complying with States’ international obligations, especially with regard to the search for and location of disappeared and missing migrants and, in the event of their death, the exhumation, identification and return of their remains.Footnote 43 In particular, relatives of missing migrants residing abroad face severe restraints in their access to justice.Footnote 44 Those relatives who envisage travelling to Mexico in order to file complaints in loco and be directly involved in operations of search or in the conduct of criminal investigations frequently lack the necessary documents to do so, and are denied temporary humanitarian visas that would enable them to legally enter Mexican territory.Footnote 45 Even when these bureaucratic problems are overcome, and the necessary resources to embark on the journey can be gathered, relatives of missing and disappeared migrants who manage to enter Mexico struggle with loopholes in the domestic legislation. In particular, their legal standing and status as victims have often not been formally recognized, therefore hindering them from claiming their rights, including the right to be actively involved in operations of search and associated to criminal investigations (the latter being known in Mexico as coadyuvancia).Footnote 46 Appointing a legal counsel or representative in Mexico has also become extremely difficult, if not virtually impossible, for families of missing and disappeared migrants residing abroad, due to bureaucratic and administrative obstacles posed by Mexican authorities, including a great amount of formalism.Footnote 47
While the rule of law requires the respect of certain formalities, the situation of relatives of missing migrants calls for greater flexibility due to the specific features of the phenomenon. Further, access to files containing data and information on the progress of investigations concerning missing and disappeared migrants is one of the biggest problems faced by families residing abroad, thus jeopardizing their rights to know the truth, to access justice and to obtain redress.Footnote 48 The impossibility of acquiring information on the fate and whereabouts of loved ones is a source of great suffering and anguish for families, often amounting to inhumane treatment and an impairment of their mental integrity.Footnote 49 In this case, this feeling is further exacerbated by the physical distance involved and the practical barriers encountered by families.Footnote 50 Out of despair, some relatives decide to leave their countries of residence and enter Mexico without documents, often relying on smugglers, thus exposing themselves to the same security risks already faced by their loved ones.Footnote 51
With regard to mortal remains located in the mass graves related to the three above-mentioned massacres, having access to information concerning the exhumation and identification process and providing DNA samples proved almost impossible for families residing in Central America.Footnote 52 In the face of this ordeal, instances where Mexican authorities made mistakes in the identification of mortal remains and returned wrongly identified bodies to families have been registered.Footnote 53 In other cases, relatives living in Central America received information that the remains of their loved ones had been found in Mexico (without any precision on the reliability of the process of exhumation and identification conducted) and would be cremated due to hygienic and public health reasons. When they tried to oppose this before the Mexican authorities, arguing that they had no certainty whatsoever on the credibility of the identification and that cremation was against their religious beliefs and customs, they were told that they had no legal standing to do so.Footnote 54 In some cases, while complaints were still pending, cremation was carried out anyway.Footnote 55 The majority of relatives who have been exposed to this form of re-victimization have so far been unable to obtain justice and redress from the Mexican authorities for the harm suffered, and in exceptional cases where their rights were acknowledged in court, the relevant judgments remained unimplemented.Footnote 56 These episodes have fostered a climate of distrust towards the Mexican authorities among families, in particular vis-à-vis the forensic services and the Attorney General's Office, who some have regarded as being incapable or unwilling to establish the truth and to conduct thorough and effective investigations.Footnote 57
Not only did the applicable domestic legal frameworks in Mexico and the neighbouring countries fail to offer adequate responses, but also in some cases the traditional means offered by international human rights mechanisms proved insufficient. For instance, a Mexican NGO representing families of missing and disappeared migrants, both from Mexico and from Central America, lodged a request before the IACHR for the adoption of precautionary measures directed at the preservation of burial sites and mass graves and the carrying out of exhumation and identification operations in accordance with international standards, in order to provide opportunities for families to know the truth.Footnote 58 Given the features of the phenomenon of missing migrants and its transnational character, the petitioners requested that the IACHR address measures to be taken by the various States concerned. The Commission rejected the request, holding, among other things, that precautionary measures had always been directed at one State at a time and in situations where at the very least the precise nationality of the beneficiaries of the measures could be determined beforehand.Footnote 59 This situation revealed an unpreparedness to adapt the existing tools to the specific features of the issue of missing and disappeared migrants in a transnational context.
In recent years, the existence of these obstacles has been gradually acknowledged by international human rights mechanisms that have addressed several recommendations to Mexico. Notably, the IACHR recommended that Mexico:
Put into practice mechanisms to search for migrants who are disappeared, missing, kidnapped, or otherwise deprived of liberty. These mechanisms must be coordinated among the States, federal government, and the migrants’ countries of origin in Central America and the countries of destination, primarily the United States[;] Develop effective and regionally coordinated investigative mechanisms that enable aggrieved migrants and their family members to have effective access to justice, irrespective of their immigration status or their provenance[;] … Put into practice a nationwide mechanism that makes it easier to share forensic information on the unidentified remains of Mexican persons and Central Americans who disappeared in Mexico, with the forensic databanks on disappeared migrants that have been developed within the region, such as those in El Salvador, Guatemala, Honduras and the state of Chiapas, and any others that may develop in the future. This national mechanism should be merged with a like regional mechanism enabling forensic information to be shared among the countries of Central and North America. Civil society organizations should be instrumental in running both the national and regional databanks[;] … Develop regional instruments and mechanisms to combat the criminal activities of transnational organized crime groups involved in the abduction of migrants, human trafficking and smuggling of migrants.Footnote 60
Similar recommendations, emphasizing the need to establish specific mechanisms able to deal with the transnational scope of the phenomenon, have also been issued by other international bodies.Footnote 61 In particular, the Committee on Enforced Disappearances (CED) has expressed special concern for this situation and has been very vocal in recommending that Mexico,
in conjunction with countries of origin and countries of destination, and with input from victims and civil society, … redouble its efforts to prevent and investigate disappearances of migrants, to prosecute those responsible and to provide adequate protection for complainants, experts, witnesses and defence counsels. The transnational search and access to justice mechanism should guarantee: (a) that searches are conducted for disappeared migrants and that, if human remains are found, they are identified and returned; (b) that ante-mortem information is compiled and entered into the ante-mortem/post-mortem database;Footnote 62 and (c) that the relatives of the disappeared persons, irrespective of where they reside, have the opportunity to obtain information and take part in the investigations and the search for the disappeared persons.Footnote 63
From the above it appears that the mechanisms existing in Mexico for the search for missing and disappeared persons, as well as those in charge of conducting investigations, were not sufficient to deliver the desired results. Generally understaffed, lacking the needed financial and human resources, and incapable of meeting the international standards of due diligence,Footnote 64 they proved inadequate to deal with the extraordinarily complex cases of missing and disappeared migrants. New organs, with a regional, transnational nature and focus, were needed. Prompted by the reiterated recommendations received from international human rights bodies and by advocacy campaigns led by Mexican NGOs and committees of families of missing and disappeared migrants from Central America,Footnote 65 between 2013 and 2016 Mexico eventually set up three mechanisms aimed at providing effective humanitarian, forensic, legal and judicial responses, duly taking into account the transnational character of these enforced disappearances and the need for regionally coordinated efforts.
The Forensic Commission
In the wake of the three massacres of migrants discussed above, the problems concerning operations of exhumation, identification and return of mortal remains to families residing abroad became evident and, fuelled by instances of mistaken identifications, a climate of distrust towards the Mexican authorities and the concerned consular and diplomatic channels spread. To tackle this situation, at the initiative of civil society organizations from Mexico, Honduras, El Salvador and Guatemala,Footnote 66 in August 2013 a Forensic Commission mandated to exhume, identify and return the mortal remains located in the burial sites related to the three massacres was established.
The Agreement setting up the Forensic Commission for the identification of remains in San Fernando and Cadereyta was signed by the Attorney General's Office of Mexico, the Argentine Forensic Anthropology Team (Equipo Argentino de Antropología Forense, EAAF), committees of families of missing and disappeared migrants, and NGOs from El Salvador, Honduras, Guatemala and Mexico.Footnote 67 The mixed composition of this body and the proactive involvement of civil society from the early stages of its design, as well as the cooperation between State-appointed and independent forensic experts (such as the EAAF) aimed at reconstructing trust towards the authorities among families of missing and disappeared migrants, represent a significant novelty.Footnote 68 Pursuant to Articles 4–9 and 15 of the Agreement, the Attorney General's Office and the EAAF are in charge of the scientific aspects, while civil society organizations provide data and information, and committees of families facilitate the establishment of contacts with relatives of missing and disappeared migrants.
Notably, even before the establishment of the Forensic Commission, the EAAF had been working on the setting up of genetic databases, called Bancos de Información Forense de Migrantes Desaparecidos, in El Salvador, Honduras and the Mexican state of Chiapas.Footnote 69 These databases gather information collected by governmental and non-governmental organizations including committees of families of missing and disappeared migrants, national human rights institutions, attorney generals’ offices in the different countries concerned, consular and diplomatic services, ministries of foreign affairs, and the EAAF.Footnote 70 The systematic collection of DNA by morgues in the countries concerned can enable search operations, discovery and identification via matching.Footnote 71 The existence of a wider basis for comparison and matching increases the chances for identification.
While the mandate of the Forensic Commission at present refers solely to exhumation and identification of the remains linked to the three massacres of migrants,Footnote 72 since the beginning of its mandate the Forensic Commission has been trying to establish good practices in the process of exhumation, identification, return of mortal remains, and notification of families.Footnote 73 The establishment of such protocols should be beneficial for the authorities involved in view of the thousands of other cases of unidentified remains, even those not necessarily concerning migrants or mass casualties.Footnote 74
The Forensic Commission has achieved significant results since its inception, establishing a standardized procedure to be followed to collect data, to carry out DNA matching, to respect the chain of custody, and to notify the identification of the body of a missing migrant to his or her relatives in a dignified manner that provides elements of certainty and avoids to the extent possible instances of re-traumatization.Footnote 75 Among the many interesting aspects of the process, particularly notable is the reversal of roles: when interviews must be conducted, DNA samples collected or an identification notified, it is no longer the responsibility of the families to travel to Mexico; rather, the responsibility is on the institutional actors and the EAAF to travel to the country of origin of the migrant.Footnote 76 This is also the case for the return of duly identified remains.Footnote 77 The Mexican authorities are in charge of taking all necessary measures – including the issuing of documents and humanitarian visas, and covering of expenses – to facilitate the presence of relatives of missing migrants in Mexico, when it is exceptionally required.Footnote 78 Consular and diplomatic channels have been alerted and are adapting their traditional operation system to favour this process.Footnote 79
This is a paradigm shift that has greatly contributed to lessening the psychological trauma and material burdens for families of missing and disappeared migrants, and to rebuilding an environment of trust vis-à-vis the authorities. Nevertheless, some drawbacks in the functioning of the Forensic Commission and in the smooth conduct of the process remain, and these will be analyzed below.
The Investigative Unit on Crimes against Migrants and the Mechanism of External Support for Search and Investigation
Prior to the establishment of the Forensic Commission, the IACHR had found the Mexican authorities in breach of their international obligations not only in terms of searching for missing migrants, but also with regard to the carrying out of effective investigations capable of leading to the identification of those responsible for the crimes concerned and to their prosecution and sanction.Footnote 80 Hence, in addition to the creation of a mechanism mandated to deal with the scientific and forensic aspects and the provision of humanitarian responses to families of missing and disappeared migrants, the need remained to establish a similar body in charge of criminal investigations aimed at identifying perpetrators of crimes committed against migrants and capable of dealing with transnational organized criminal groups. Similarly, pursuant to the recommendations directed at Mexico by various international human rights bodies, the creation of an effective channel of communication and coordination among the different authorities, states and families was also required.Footnote 81
To answer to these demands, on 16 December 2015, the Attorney General's Office of Mexico adopted an agreement establishing an Investigative Unit on Crimes against Migrants (Investigative Unit) and a Mechanism of External Support for Search and Investigation (Mechanism of External Support).Footnote 82
The Investigative Unit depends on the Human Rights Section of the Attorney General's Office, and its mandate includes facilitation of access to justice and effective remedies for migrants and their families; carrying out the search for missing and disappeared migrants; investigation and prosecution of those responsible for crimes committed against migrants; and directing, monitoring and coordinating actions aimed at granting reparation to migrants and their families for the harm suffered.Footnote 83 The work of the Investigative Unit will be facilitated by the Mechanism of External Support, which is meant, through the use of consular and diplomatic channels, to allow families of missing and disappeared migrants to have access to, and be in communication with, Mexican authorities competent to address the cases of their loved ones, whether administrative, judicial or responsible for social support, directly from their countries of residence.Footnote 84 The Mechanism of External Support hence aims at being a channel through which relatives of missing and disappeared migrants can be informed on the progress of the investigation and be closely involved with the operations of search and, where appropriate, in the identification of perpetrators of crimes against their loved ones.Footnote 85 Moreover, the Mechanism is in charge of ensuring that relatives of missing and disappeared migrants who fall under the definition of “victim” set forth under the Mexican General Law on Victims of 9 January 2013 can obtain measures of social support (including medical and psychosocial assistance) and reparation directly in their country of residence.Footnote 86 The Mechanism of External Support is also meant to facilitate families of missing and disappeared migrants in the process of appointment of a legal representative of choice in Mexico.Footnote 87
The agreement to establish the two mechanisms was adopted in December 2015. The Investigative Unit had commenced its work by the end of February 2016 and the Mechanism of External Support was used for the first time in the autumn of 2016, after the guidelines on its functioning were adopted in September 2016.Footnote 88
The Investigative Unit and the Mechanism of External Support have been conceived and designed in the context of a participative process in which civil society associations and committees of families of missing and disappeared migrants have been actively involved since the beginning.Footnote 89 As pitfalls in the operation of the Unit and the Mechanism have emerged, civil society has called for further consultations in an attempt to be more engaged in decision-making and in the strengthening of the process.Footnote 90
The pitfalls of the three mechanisms and the challenges ahead
The establishment of the Forensic Commission, the Investigative Unit and the Mechanism of External Support has been regarded as a positive development by international human rights mechanisms.Footnote 91 However, it has been pointed out that there are still gaps and areas that require improvement.Footnote 92
Since the beginning of the work of the Forensic Commission, there has been an ongoing call from civil society organizations to expand its mandate beyond the three massacres of migrants that took place in 2010–12.Footnote 93 On the one hand, this expansion is regarded as a means to increase the possibilities of identification: the broader the pool of mortal remains and DNA samples that can be compared, the higher the chances of identifying the bodies and unveiling the truth for the families. In this regard civil society organizations have stressed that, at the very least, it is indispensable to also include in the work of the Forensic Commission the cases registered in the states in Mexico that are known to be part of the migratory routes towards the United States.Footnote 94 On the other hand, associations of relatives of Mexican disappeared persons have been advocating for also having their cases dealt with by the Forensic Commission, arguing that this would increase their chances of learning the truth on the fate and whereabouts of their loved ones and that it would offer them more reliability in view of the high standards applied and the presence of independent forensic experts.Footnote 95
At the time of writing, despite a general expression of interest from the Attorney General's Office in studying the amendment and expansion of the mandate of the Forensic Commission, this has not yet occurred.Footnote 96 This must be read in conjunction with the lack of coordinated efforts and measures at the State level, given that neither a map nor a unified database of all the clandestine burial sites and mass graves located in Mexico, let alone a national programme of exhumation of such sites, has yet been adopted. The lack of a national strategy on these matters also hinders the possibility of understanding and addressing crime patterns and the real scope of the issues at stake. In this sense, search operations and forensic work are still characterized by a high level of fragmentation that eventually lowers the identification rate and may even increase the families’ suffering and anguish.Footnote 97 Adequate human and financial resources are needed in order to provide an effective answer, especially in view of the appalling number of common graves and human remains that have recently been located in certain states of Mexico.Footnote 98
Despite the adoption by the Forensic Commission of the Protocol on the Notification of Identification of Remains of People Located in San Fernando, Tamaulipas and Cadereyta, Nuevo León,Footnote 99 episodes where this Protocol was not respected were registered in 2014 and 2015, resulting in tensions and the re-traumatization of relatives. For instance, in July 2014 the Forensic Commission conducted the first notifications of identification of the mortal remains of eleven Honduran migrants among the bodies located in Cadereyta and San Fernando.Footnote 100 On this occasion, the evident lack of communication and coordination between Honduran and Mexican authorities led to delays in the repatriation of the mortal remains and to the leaking of information through the press that made the forthcoming news public before the families were notified.Footnote 101 Moreover, authorities sought to carry out a ceremony for the return of the remains in the barracks of the Honduran Air Forces and in the presence of the media. Families were not previously consulted and they strongly opposed these ideas, considering them unnecessarily spectacular and traumatic and indicating that they would have preferred a more private event. Further problems emerged when the families tried to coordinate with the authorities the transfer of the mortal remains to their villages of origin and claimed for expenses from the Mexican Commission of Support to Victims, which is the competent institution pursuant to the law.Footnote 102 These first test cases showed the tendency of the consular and diplomatic authorities and of the Commission of Support to Victims to rigidly apply traditional schemes and protocols that do not adequately reflect the reality of missing and disappeared migrants and the needs of their families. Similar instances have been reported more recently,Footnote 103 and underscore the necessity to abandon overly rigid bureaucratic formalitiesFootnote 104 and to adapt the process to the complex reality at hand, further enhancing regional cooperation and communication.
While the creation of the Investigative Unit and the Mechanism of External Support was aimed precisely at overcoming some of these obstacles, they struggle with certain shortcomings and practical difficulties. First, the Investigative Unit is relatively understaffed (it currently counts on thirteen prosecutors, none of whom has previous experience working in fields relating to crimes against migrants or crimes of a transnational nature),Footnote 105 especially considering the magnitude of the tasks at hand. So far, the operation of the Investigative Unit very much resembles that of other units of the Attorney General's Office, being based mostly on the collection of documentary evidence and not employing in loco investigations or a comprehensive analysis of the transnational criminal context and patterns.Footnote 106 Furthermore, the Investigative Unit does not have access to any structured mechanism of coordination with other Mexican authorities (such as the Commission of Support to Victims) that may be involved in dealing with the families of missing and disappeared migrants in the countries of origin.Footnote 107
Although the Mechanism of External Support has begun collecting complaints from families of missing and disappeared migrants through the Mexican consulates and embassies in Honduras, El Salvador and Guatemala,Footnote 108 it struggles with some material constraints. First, the authority mandated to collect these complaints and to coordinate the process is an attaché to the Mexican Attorney General's Office, and at present the only attaché of the Attorney General's Office for Central America is based in Guatemala.Footnote 109 This implies that whenever actions relating to the Investigative Unit and the Mechanism of External Support must be undertaken in countries such as El Salvador and Honduras, the attaché must travel there, taking care of all the relevant practical and logistical arrangements. In practice, this equates the situation to that prior to the establishment of the Mechanism of External Support. While the aim of the latter was precisely to speed up the process of collection and transfer of data and complaints among the different countries, the registration of claims and their formal transfer to Mexico continue to take months. The work of the Investigative Unit is consequently slowed and the object and purpose of the Mechanism of External Support seem to be in jeopardy.
The second major shortcoming of the two mechanisms is that access to measures of social support and reparation for relatives of missing and disappeared migrants is hardly ensured. As a matter of fact, they encounter mostly bureaucratic difficulties in exercising these rights in their respective countries of residence and are frequently requested to travel to Mexico,Footnote 110 with all the ensuing, and often insurmountable, practical difficulties that this entails. Moreover, the collection of complaints through the Mechanism of External Support has so far been shown to lack sound guarantees in terms of protection of victims, witnesses and their relatives, particularly with regard to keeping sensitive data confidential.Footnote 111 This is especially worrisome considering that families and witnesses often live close to smugglers or members of organized criminal groups or cartels, who may have been involved in the disappearance of their loved one in the first place.
Finally, Mexican embassies and consulates in the Americas are not yet fully familiar with the existence of the Mechanism of External Support and its mandate.Footnote 112 This scarce awareness ultimately undermines the use of the Mechanism and leaves families of missing and disappeared migrants to face the obstacles that the Mechanism should remove.
It is evident that the creation of the Forensic Commission, the Investigative Unit and the Mechanism of External Support is to be regarded as a first step, and seemingly in the right direction – but much remains to be done.
Conclusion
The example of mechanisms set up to address the phenomenon of missing migrants in Mexico and its neighbouring countries confirms that appropriately and effectively dealing with missing and disappeared migrants and their families presents unique challenges and requires innovative responses.
First, the transnational scope of the phenomenon necessarily calls for the setting up of regional mechanisms of search, support and investigation that overcome the traditional national approaches and are capable of enhancing the level of cooperation among States’ authorities, with a view to offering effective humanitarian, forensic, legal and judicial responses that meet the needs of families. These mechanisms must be adapted to the specific regional contexts within which they are operating, duly taking into account the peculiarities of migration flows in specific geopolitical settings.
Second, data collection, data sharing, data analysis and related measures to help resolve the fate of missing and disappeared migrants must be improved, standardized and better coordinated. They should not be limited to the documentation of fatalities, but must focus on the collection and circulation of information that can be used to help relatives find their loved ones.
Third, the issue of missing and disappeared migrants should not be addressed without considering the potential role played by organized criminal groups operating on an international scale. This requires the adoption of measures of protection against ill-treatment and intimidation for relatives of missing and disappeared migrants, their representatives and defence counsels, and witnesses that reflect the transnational dimension of the phenomenon and of the threats. Access to justice, redress and measures of social support to families must be granted also to those residing in a country different from the one in which the person was reported missing or was subjected to enforced disappearance.
The attempts made by Mexico and Central American countries can be regarded as first steps in this direction and deserve to be studied in order to single out good practices and learn from mistakes. One important lesson is that all initiatives aimed at dealing with this extremely complex subject greatly benefit from the active involvement of civil society organizations and, in particular, of associations of relatives of missing and disappeared migrants. Any successful mechanism mandated to search, establish the truth, and conduct effective investigations on missing and disappeared migrants requires the full participation of families and their representative associations in the phases of design, implementation, evaluation and decision-making.
Migration flows are not likely to decrease in the near future. Emerging trends that aim at putting in place higher barriers to entry to deter migrants, and which criminalize and scapegoat the latter, are only going to force thousands of people into using more dangerous channels to travel, thus exposing their lives to greater risk. In this grim scenario, it is not improbable that the figure of missing and disappeared migrants will increase. The adoption of adequate legal, administrative, humanitarian and judicial measures cannot be postponed and should be inspired by the need to find the responses that are most conducive to the protection of all persons from such suffering. Wishing to overcome mere rhetoric and to contribute to the development of actual policies, this article aims at nourishing debate and inspiring new ideas to effectively address the issue of missing and disappeared migrants.
