The Inter-American Court of Human Rights (Court) decided two rape cases in August 2010 brought by indigenous women against Mexico. In Cantú and Ortega, the Court held that two women raped by Mexican soldiers were denied access to justice when their cases were placed under military jurisdiction and not adequately investigated by either civilian or military authorities. The Court found Mexico in violation of the American Convention on Human Rights (American Convention), the Inter-American Convention to Prevent and Punish Torture (Convention on Torture), and the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women (Convention on Violence against Women). The Court concluded that the Mexican military justice system is inherently unsuited to investigate human rights violations allegedly perpetrated by members of the Armed Forces.
The women, both members of the Me’phaa (Tlapanec) indigenous group, faced similar difficulties following their rapes. Neither woman received timely and adequate medical treatment following her ordeal. Cantú was initially refused services because of the doctor’s alleged fear of military retaliation and a lack of proper medical equipment. Ortega was not provided medical treatment until the day following her rape because there was no female physician available to examine her. Neither woman was given a psychological evaluation. Cantú, who was only seventeen at the time of her rape, was left by her husband and outcast by her community such that she was forced to relocate to another town. Ortega and her family were repeatedly threatened and attacked, and her brother was murdered for his support and advocacy on her behalf.
Ortega’s initial attempt to report her case was denied because it implicated the military. It took more than two months for the Public Prosecution service to determine which office had jurisdiction over Cantú’s case. Both cases were eventually transferred from the local Public Prosecution Service to the Military Prosecution Service, despite appeals by the women for their cases to remain in the civilian system. After more than a year of inaction, the victims filed petitions with the Inter-American Commission on Human Rights (Commission) with the help of several civil society organizations. The civil society representatives stressed the importance of recognizing that sexual violence occurs within the broader context of a strong military presence in the state of Guerrero and that the subjugation of indigenous populations is a means of maintaining control over rebel groups. The representatives noted the ambiguity of Article 13 of the Mexican Constitution and Article 57.II.A of the Code of Military Justice, which address the scope of military jurisdiction, and advocated for reforms clarifying that human rights allegations against members of the Armed Forces should be investigated and tried by civilian courts.
The Commission held that Mexico violated the women’s rights to non-discrimination, humane treatment, privacy, and juridical protection and as a result, made several recommendations to Mexico. After the government failed to comply with the recommendations, the Commission submitted the cases of Ortega and Cantú to the Court for adjudication in May 2009 and August 2009, respectively. The Commission’s application to the Court highlighted that the State’s failure to investigate the victims’ claims without unnecessary delays and bring the perpetrators to justice was rooted in racial and gender discrimination. Moreover, the Commission posited that allowing cases where both the investigators and the defendants are members of the same security force leads to partiality and impunity, which is more pronounced in a system that lacks competence in dealing with issues of sexual violence.
In its rulings, the Court found that Mexico violated the victims’ rights to non-discrimination, humane treatment, legal protection, and privacy, Articles 1, 5, 8, 11, and 25 of the American Convention. The Court also found that Mexico had failed to meet its obligation to investigate and prosecute cases of torture under Articles 1, 2, and 6 of the Convention on Torture. Additionally, it found that Mexico had violated Article 7 of the Convention on Violence against Women by failing to take adequate steps to prevent, investigate, and punish violence against women. Finally, the Court found that Cantú’s right to special protection as a minor was violated under Article 19 of the American Convention. The Court ordered Mexico to pay $171,000 in reparations to Ortega and her family members and $147,000 to Cantú.It also ordered Mexico to investigate the rapes of both women with due diligence, to reform the Code of Military Justice limiting the scope of military jurisdiction in cases of civilian human rights’ abuses, and to allocate resources and establish mechanisms of prevention and protection for indigenous women and girls, amongst other measures.
The Court’s rulings indicate the Inter-American system’s growing focus on eliminating impunity within the Mexican military and the lack of transparency in the military justice system. The ruling mirrors a 2001 verdict where the Court found that Mexico had likewise failed to conduct a thorough, impartial, and civilian investigation of the rape of three indigenous sisters by military personnel. These rulings signify the Court’s recognition of the special vulnerability of indigenous communities in militarized zones and the need to implement safeguards to mitigate the harmful effects of military presence and improve access to assistance and justice, especially for women. Finally, the Court’s rulings highlight the continued shortcomings of the Mexican institutions involved in cases of human rights violations perpetrated against indigenous women, from failures to provide culturally and linguistically competent service provision to victims to coordination amongst investigative and judicial agencies to adequately address sexual abuse cases without revictimization.