McAlpine, John, Q.C.
The Advocate, Vol. 60 Part 3, May 2002, page 379.
Digna Ochoa was a much-respected Mexican lawyer and human rights defender who was shot to death on October 19, 2001. The Inter-American Court of Human Rights (the “IACHR”), in its resolution of October 25, 2001, described the circumstances surrounding her homicide in the following chilling language:
…The attorney was attacked by one or more unidentified individuals in the office of her colleague Pilar Noriega Garcia in the Colonia Roma neighborhood of Mexico City. According to information released by the Federal District’s Director of Forensic Medical Services, Jose Ramon Fernandez Caceres, the acts occurred between 1:00 and 3:00 p.m. on October 19, 2001. Three lesions were found on the body of Ms. Digna Ochoa as well as a gunshot wound to the head. She was shot at what is termed “point blank” because the weapon was fired at no more than 2 centimeters from her head, resulting in her death…
…next to the victim’s body was found a message containing a threat against member of the [Miguel Augustin Pro Juarez Human Rights Centre, also known as the PRODH Centre];
…several Mexican authorities including Attorney General of the Federal District, Bernardo Batiz, publicly declared that the unlawful execution of the attorney was most likely a reprisal against her professional activities in defense of human rights. Digna Ochoa worked directly and closely on the projects with Attys. Pilar Noriega Garcia, Barbara Zamora Lopez, and Leonel Rivero Rodriguez.
In his interim report released in the week of April 2, 2002, Dr. Pedro Diaz Romero, the consultant from the Inter-American Commission on Human Rights, characterized the significance of Digna Ochoa’s death as follows:
The death of Digna Ochoa is a serious act because it involves a woman lawyer, a qualified human rights defender, and a former member of one of the main non-governmental organization in Mexico, the [PRODH Centre], who have also been victims of harassment, threats and repression for their committed work in the defense of human rights.
It is an act of national and international importance, framed in the special situation that the field of human rights in Mexico is experiencing.
On March 11, 2002, I flew to Mexico City on behalf of Lawyers Rights Watch Canada (“LRWC”) to meet with Nicholas Stewart, Q.C., of the Bar Human Rights Committee of England and Wales (the “BHRC”). Our joint mandate was to assess the progress of the investigation of this homicide. The scope of our mandate afforded us access to other defenders of human rights, specifically the members of PRODH.
My brief contained the following chronology of threats and violence leading up to Ochoa’s death.
- August, October, November 1996:Ochoa and Pilar Noriega received written death threats at PRODH offices. The Mexican attorney general at times promised full investigation and official protection of PRODH staff. Similar incidents against human rights organizations and defenders occurred into 1997.
- May 1997: PRODH office surrounded and kept under surveillance by a number of unidentified armed persons.
- August 9, 1999: Ochoa forced into car by two men, assaulted and threatened with death before released.
- September 1999: Ochoa received further written and phone threats.
- October 1999: Ochoa’s home broken into twice. During these forced entries, a voter card taken in an attack on August 9 was placed inside the house. Ochoa was assaulted, held captive for several hours, interrogated as a legal advisor to PRODH and then tied to her bed beside an open gas valve.PRODH offices were ransacked the same night. Investigations of these events were fruitless, and the file was eventually shelved.
- November 1999: The IACHR issued “provisional measures” for Ochoa’s protection.
- August 2000: After further threats, Ochoa moved to Washington, D.C., to work for the Centre for Justice and International Law.
- May 2001: The Mexican government’s investigation of the attacks and threats against Ochoa was suspended and the Mexican government applied to the IACHR for leave to remove the special measures protecting Ochoa.
- October 2001: In response to the murder of Ochoa, the president of IACHR issued a resolution ordering the Mexican government to immediately implement measures to protect other threatened lawyers and to conduct full investigations leading to the prosecution and punishment of those responsible for Ochoa’s death.On November 30, 2001, the IACHR confirmed this resolution and extended the special protection to members of Ochoa’s family.
Attorney General Bernardo Batiz spoke of the motivation for the execution of Digna Ochoa as “most likely a reprisal against her professional activities in defense of human rights”.My brief pointed out that Ochoa represented many individuals accused of involvement in Zapatista insurgency.Perhaps more important, the threats and assaults against Ochoa in 1999 coincided with her representation of two prominent ecologists, Rodolfo Montiel and Teodoro Cabrera. They had been detained on May 2, 1999, as a result of a campaign against excessive logging operations in the state of Guerrero. They were held incommunicado by members of the military, tortured to sign self-incriminating confessions, charged with drugs – and firearms-related crimes and given six- and ten-year sentences. At an appeal hearing in July 2001, the convictions were ratified despite the irregularities of due process and forensic evidence that indicated their confessions had been extracted under duress. An investigation into allegations of torture was passed to military justice systems for consideration but seems to have halted there.
Approximately one week before her death, Ochoa visited Guerrero, the state where the two ecologists had worked. Their case had a high international profile; after Ochoa’s death, President Fox intervened and the two ecologists were released in November 2001.
On November 17, 1999, the IACHR, by reason of the threats, abduction and attempted murder I have described, took the first of several unprecedented steps. It made an order:
…to require that the State [United Mexican States] adopt forthwith such measures as are necessary to protect the right to life and physical safety of Digna Ochoa y Placido, Edgar Cortez Morales, Mario Patron Sanchez, and Jorge Fernandez Mendiburu, members of the [PRODH] Centre.
…to require that the State investigate the reported acts that gave rise to the present measures in order to find and punish those responsible.
Mexico willingly complied and provided the police protection as ordered. However, the investigation called for bore no result.
It is the federal authorities that had the responsibility for the investigation. had ready access to and interviewed (with one exception) representatives of the key ministries, including Pilar Noriega, a federal human rights official who had been a fried and colleague of Digna Ochoa and who had served as advocate on behalf of PRODH. She has no official role in the investigation of Ochoa’s death.
Nicholas Stewart, Q.C., and Kirsty MacDonald, of the BHRC, spoke and understood Spanish. I had the benefit of simultaneous translation by a skilled interpreter. The three key interviews were conducted in a professional manner, as between lawyers, bent on the same goal of conducting a full and fair investigation. The discussions were open but subject to a professional discretion given the confidentiality of some of the subject matter of our questions. I had no sense of being stonewalled. Nor at any time did I feel any resentment coming from any Mexican government official at what otherwise could be perceived as an unwelcome intrusion into its investigation.That is important because everyone recognized that we were assessing the will and determination of the attorney general in the conduct of the investigation into Ochoa’s death.My reading is that, in general, the Mexican government wants all the help it can get.1
SIGNIFICANCE OF THE INVESTIGATION2
The perception of a senior government official was that should the investigation into the death of Ochoa fail or be perceived to fail, the political stability of a state seeking to establish a renewed commitment to democratic principles will be threatened.The Ochoa case is viewed as important because Ochoa fought for the cause of human rights. Her cases affected powerful interests, including those of the military and of land owners. The open conduct of a full and fair investigation into Ochoa’s homicide is viewed by the chief investigator as an important demonstration of Mexico’s determination to continue along the democratic path that it has chosen.
STATUS AND PROGRESS OF THE INVESTIGATION
I concluded that the chief investigator is committed to conducting the investigation of the Ochoa homicide with integrity.He is determined that any entity that falls under the investigation’s scrutiny, including the military, must be required to yield to the constitution and civil authority. Whether this assessment of the bona fides of the investigation is proven right in the long term, acceptance of the rule of law is the standard by which the Mexican government, and particularly its prosecutorial arm, should be and wishes to be judged.
On the other hand, the obstacles to a successful investigation are substantial, and they cannot be discounted.For example, securing the full cooperation of the army in the ongoing investigation may prove difficult.If the force of this investigation ultimately points to what may be called the Guerrero connection (recall that the two ecologists Ochoa represented were active in Guerrero) and if it implicates the army, then military cooperation will be only ensured if there is intervention from the highest authority, such as the office of President Fox.Moreover, my colleagues and I perceive that the success of the investigation is dependent upon sufficient financial resources being made available to the investigating team.Sufficient funding may not, at present, be available. Moreover, the reform of institutions such as the police force, the judiciary and the legal profession (all key players in the administration of justice) has yet to be effected.This investigation is taking place at a time when Mexico is in transition toward a full-fledged democracy.All of these are formidable obstacles.
EVENTS SUBSEQUENT TO OUR INTERVIEWS IN MEXICO CITY
An event of importance occurred on March 26, 2002. Barbara Zamora, a lawyer formerly with PRODH, a colleague of Ochoa and one of the subjects of the provisional protective order of the IACHR, received a death threat in a like form to those received by Digna Ochoa. Zamora had, prior to this recent threat, made a public statement refuting an hypothesis that Ochoa committed suicide – an hypothesis that has been attributed to the attorney general’s office by certain newspapers. Thus, it is plain that the forces that would suppress progress of the kind the investigation seeks to make are still active.
Second, and more reassuringly, a highly placed official recommended in the first week of April 2002, that a search be made for a forensic expert – “preferably foreign” – to evaluate the investigation conducted to date and to make recommendation for the future.That recommendation, as we see it, touches upon the role of the government of Canada.
LRWC and BHRC have taken a first step by establishing personal relationships with individuals we met and with their agencies. Such relationships are central to the efficacy of continued monitoring of the investigation by LRWC and BHRC. Through these agencies we look forward to being informed in the future of the significant developments in the case and in turn making known our concerns.
It is the perception of those we spoke to that the mere presence of international human rights organizations places pressure on the government to do the right thing. My own analysis is that the combination of the new government’s commitment to reform, coupled with its recognition of the importance of the perception of the international community, provides an opportunity for organizations such as LRWC and BHRC to support human rights initiatives to improve the security and independence of human rights defenders.I believe it would be wrong to characterize the apparent lack of progress of the Ochoa investigation to date as proof that the injustices of Mexico’s past history will continue unabated.
We have already taken steps to work with the Canadian government by making contact with the Canadian embassy in Mexico and the Department of Foreign Affairs in Ottawa. We are urging that Canada provide the forensic expertise called for and warranted by the criminal investigation.
QUESTIONS: WHAT CAN BE DONE? HOW CAN WE NOT ACT?
The threats and violence evident in the case of Digna Ochoa challenge Mexico’s transition to a new democracy.I believe the chief investigator is committed to reform and needs help. At stake is the independence of the bar at its most basic level.Lawyers and advocates must enjoy freedom from threats and from fear itself. A mantle of protection must be available to human rights defenderswho are on the front line.This is what the Ochoa case is about.
How can we not act? I believe that the government of Canada should lay the groundwork for Canadian lawyers to play an active role in helping to reform Mexico’s justice system.
My sense is that in doing so we are “pushing on an open door”.
1. We sought to interview the attorney general of the army without success.The two ecologists, Rodolfo Montiel and Teodoro Cabrera, were subject to military justice. The chief investigator was calling upon the army to cooperate.
2. I am drawing upon my own outline forwarded to Nicholas Stewart for the joint report and dated March 28, 2002. The final joint report has not yet been prepared. Note that this outline does not include direct quotations from those we interviewed.