Introduction
From 15 March 1964 to the beginning of August 2021, the official number of disappeared and missingFootnote 1 persons in Mexico rose to more than 92,000.Footnote 2 This figure corresponds, to a great extent, to systematic disappearances perpetrated within two main identifiable periods of widespread violence: the “Dirty War” from the late 1960s to the early 1980s, and the “War on Drugs” from 2006 to date.Footnote 3 While the former was characterized by State-sponsored violence through counter-insurgency tactics used to silence political opposition – notably including enforced disappearancesFootnote 4 – the current period is distinguished by generalized violence and disappearances perpetrated by a plethora of StateFootnote 5 and non-State actors, namely organized crime groups,Footnote 6 sometimes in collusion with one another.Footnote 7 This situation has prompted a wide range of joint efforts from different stakeholders, such as victims,Footnote 8 the Mexican government, non-governmental organizations (NGOs) and international institutions, to address what is considered a crisis amidst decades of violence.
Landmark achievements have been made to address disappearances, such as enacting the General Law on Forced Disappearance of Persons (General Law on Disappearances, GLD) in 2017, which entailed a comprehensive criminalization of enforced disappearances and disappearances perpetrated by individuals.Footnote 9 Particularly, the GLD introduced a new understanding of the search for disappeared persons as a separate but fundamental pillar for addressing disappearances, parallel to criminal investigations,Footnote 10 via the creation of National and Local Search Commissions.Footnote 11 Despite these efforts, the challenge of accounting for thousands of disappeared persons remains high.Footnote 12 Particularly, even with the GLD and its revitalized search framework set in place, information that can effectively lead to clarifying the fate and whereabouts of the disappeared, and from which search strategies and plans can be established, may be elusive and difficult to obtain for authorities.
Relevant information for search purposes, defined as that which is required for clarifying the fate and whereabouts of disappeared persons, includes ante mortem data, the circumstances of the disappearance, names of witnesses and perpetrators, and post mortem data, such as identified bodies and locations of graves.Footnote 13 However, in reality this information is only scarcely available to authorities in some cases and, even when it is available, it might not be sufficient to find the disappeared person or persons in question. While collaborationFootnote 14 with people who possess relevant information is fundamental for a successful search process, it is not unusual for people to abstain from sharing such information out of fear of reprisals or criminal prosecution.Footnote 15
Whereas collaboration aimed at acquiring relevant information can be established with various actors under different regimes, such as witness protection or family and victim participation, this paper will focus exclusively on collaboration with organized crime groups.Footnote 16 Members of these groups usually have valuable inputs for search purposes, either because they are perpetrators of disappearances or because they possess privileged information due to their involvement in organized crime structures and their territorial control in certain areas. Besides the growing recognition of the role of organized crime groups as perpetrators of disappearances,Footnote 17 organized crime groups have become key actors behind the specific phenomenon of disappeared migrants in Mexico, a problem of transnational dimensions and specific challenges that has called for the adoption of concrete legal and humanitarian responses.Footnote 18 Moreover, attesting to the importance of the information that these groups possess, there are publicly known examples of search endeavours that were only successful after some type of tip-off was received from organized crime groups or some channel of communication was established with such groups, as will be explored later in this paper.
Given that collaboration with organized crime groups in search activities in Mexico is still a rather under-researched phenomenon, this paper first describes how these relationships take place. In general, it can be said that both formal and informal methods of collaboration have been put into practice, the former led by the criminal law framework for prosecution of crimes, and the latter led by families of the disappeared and victims’ groups. This paper's analysis shows that the current legal framework relies too heavily on the prosecutorial approach to search activities, failing to accommodate victims’ needs for effective collaboration with organized crime groups. Therefore, this paper argues for the need for a broader humanitarian approach to search endeavours that is victim-centred and complementary to justice-seeking mechanisms, in order to fulfil victims’ right to know the fate and whereabouts of their disappeared relatives. Finally, it advances a proposal to operationalize this approach through the involvement of the International Committee of the Red Cross (ICRC) in search activities in Mexico.
Existent practices of collaboration in the search for the disappeared in Mexico
Formal methods: The prosecutorial approach of benefits for efficient collaboration
The Mexican criminal legal framework offers benefits, under the criminal law system, for perpetrators who collaborate with the investigation and prosecution of certain crimes, as well as for those who contribute to locating victims.Footnote 19 Specifically, the GLD allows varying degrees of reduced sentencing for perpetrators if the information they provide effectively leads authorities to the whereabouts of the person they are being accused of disappearing, or if they share information that clarifies the fate of the missing and aids in identifying those responsible.Footnote 20
However, the fact that collaboration benefits are ruled by the criminal law framework entails serious limitations. Firstly, for reduced sentencing to be applicable, the perpetrator must have been identified and detained, and must have been prosecuted or sentenced for the crime of enforced disappearance or disappearance perpetrated by individuals. Given that 92.4% of crimes committed in Mexico are either not reported or not investigated by authorities,Footnote 21 there is little to no chance of actually applying any benefits in practice. Moreover, while thousands of disappearance-related investigations remain open, only a grand total of thirty-five convictions have been achieved,Footnote 22 attesting to overall impunity for disappearances alongside the State's weak prosecutorial capacities.
Secondly, perpetrators can only access reduced sentencing as per the GLD if (1) they are being charged with the crimes of either enforced disappearance or disappearance perpetrated by individuals, and (2) the information they provide relates to the victim or victims that they are being charged with disappearing. Therefore, a person being prosecuted for any crime other than the two listed above cannot access any benefits for their collaboration, even if the information they share is relevant to disappearance-related cases, or if they are charged with other disappearance-related crimes.Footnote 23 The results of this narrow applicability have been evident: up to May 2020, the Federal Prosecutor's Office reported no record of ever using any of the benefits provided by the GLD.Footnote 24
Thirdly, since the benefits of collaboration apply exclusively within the criminal law framework, the Search Commissions have no faculties of participation or interference in these processes.Footnote 25 This is a crucial shortcoming to recognize: the main authority responsible for the search for disappeared persons cannot participate in the only available legal process to access relevant information for search purposes, and cannot offer any benefits to collaborative perpetrators.Footnote 26
Therefore, the design of the benefits for collaboration provided by the law has been considered insufficient by government and civil society alike, not only because of their rather limited applicability but also due to the current prosecutorial practices of the State. An example of this is the paradigmatic case of the forty-three disappeared students of Ayotzinapa, Guerrero, in September 2014. While presumed perpetrators have been detained, the students’ families and representatives have stated that there is no use in prosecuting the perpetrators if the State cannot get from them relevant information to locate their loved ones.Footnote 27 Implicitly recognizing the existing legal framework's constraints and seeing the need for a new regulation, President Andrés Manuel López Obrador created, by presidential decree, the Commission for Truth and Access to Justice for the Case of Ayotzinapa in 2018. In the decree, the secretary of government was given the mandate to design a new, ad hoc mechanism for collaborating with perpetrators and witnesses who might possess substantial information on the case.Footnote 28 While this mechanism is yet to be created, it testifies to the federal government's initial recognition of the need to access relevant information for search purposes, and the incapability of the current framework for fostering collaboration relations with perpetrators. Additionally, a year after the aforementioned decree, President López Obrador included a specific commitment to further the benefits for effective collaboration regime within the framework of implementation of the GLD,Footnote 29 although concrete proposals or changes in this regard are also pending.
Within civil society, new discussions on creating and operating successful collaboration schemes have been held by different stakeholders and families of the disappeared. For example, in 2019 a federal senator hosted a small, informal seminar with representatives of NGOs, prosecutors, judges and defence lawyers to discuss the possibility of reforming the benefits regime. While participants recognized the impracticability and disuse of the current benefits framework, the highly technical question of how a new system of benefits could best be implemented was left unanswered.Footnote 30
Informal methods: The open secret of citizen-led searches
Informal methods of collaboration take place within what has been called búsqueda ciudadana (search by citizens, or citizen-led searches), as opposed to State-led searches for the disappeared. The phenomenon of victims’ groups and families conducting searches independently from State authorities has been documented in various places in Latin America,Footnote 31 as well as in Spain.Footnote 32 Particularly, Mexico and Colombia have witnessed that “in the face of political and scientific regimes ruled by impunity and normalized violence, [relatives of disappeared persons] create new forms of civism around forensic knowledge”.Footnote 33 In Mexico, as forensic science is under a crisis of credibility and capacityFootnote 34 highlighted by impunity, governmental corruption and indifference, and lack of political will, relatives of the disappeared are indirectly forced to start searching for their loved ones by their own means, putting themselves at risk:Footnote 35 “Their situation is characterized by values of a certain liberal self-governance such as prudentialism (managing one's own actions to avoid getting killed) and self-improvement (learning about law, forensic science and narcopolitics) to navigate uncertainty.”Footnote 36
Within citizen-led searches, relationships of collaboration between families and organized crime have been created, and while these are mostly undocumented, they constitute an open secret – “everyone who works with victims knows that everyday information on localization of mass graves is obtained and that those who provide said location data are people who participated in the events”.Footnote 37 Through this understanding of citizen-led searches, three main types of organized crime–victim collaboration can be identified: victim-initiated communication, organized crime-initiated communication, and organized crime cooperation for field searches.
Victim-initiated communication
It is not uncommon for families of the disappeared to approach organized crime group members, on their own initiative and at their own expense, in order to get any type of relevant information they can obtain.Footnote 38 For example, during an interview, one family member stated:
They are easy to find; everyone knows who the local kingpins are. Therefore, I have requested meetings with them quite a few times and asked them to give me information that can help me locate my relatives. That is all I ask of them. I tell them that I do not want to harm them or put them in jail, just their information.Footnote 39
However, these endeavours entail serious risks. As the same interviewee explained: “I do not do that anymore. One day they came to my home and kidnapped me in front of my family. … I managed to escape. I am still scared.”Footnote 40 In general, it is important to recognize that victim-led searches are accompanied by significant safety threats. From 2010 to date, at least twelve murders of victim-searchers have been recorded, and these individuals’ activism and search-related work is strongly suspected to be the reason behind their homicides.Footnote 41
The phenomenon of individual family members searching on their own has steadily evolved into highly organized and professionalized victims’ groups that search at the community, regional and even national levels. Of particular interest is the extent to which these grassroots initiatives have expanded and organized in Mexico through the ambitious National Search Brigades, dating back to 2016 and still operating, where groups of families, NGOs, religious leaders and communities come together not only for search activities but also for legal counselling, healing of social fabric and sensitivity training, among others.Footnote 42 The Brigade organizers employ what they call a “humanitarian approach”, a logic of exclusive interest in finding the disappeared and not in prosecutions, consisting of establishing dialogues with low-rank State authorities and community members with the aim of raising awareness of the harms caused by the disappearances.Footnote 43 The targeted groups for these workshops are people who have established communication channels with organized crime groups and could thus eventually provide information on the fate and whereabouts of the disappeared. The Brigades’ working group on humanitarian sensitization, for example, sets up a “mailbox of peace” during its workshops in schools, churches and other public spaces, where people can leave messages to the families and victims:Footnote 44 “This has given us an ample diversity of messages that go from letters of support to even information for the searches, which we then use, always respecting the anonymity [of the information provider].”Footnote 45
Organized crime-initiated communication
The humanitarian dialogues and sensitization strategies employed by the National Search Brigades have yielded valuable results, leading to the second type of collaboration: organized crime groups have approached victims, on their own initiative, to share relevant information on the disappeared. As recounted in an interview with a Brigade participant,Footnote 46 the following two examples of this collaboration scheme can be offered. Firstly, after the inaugural religious service of the First National Search Brigade, a crying man approached the staff saying that, until that day, he had not realized the pain he had caused; he stated that he did not participate directly but was involved in disappearance-related crimes, and provided the information he had on the matter. Secondly, during the Third National Search Brigade, a perpetrator gave information on the grave and identity of one of his victims, asking in return for the Brigade organizers to search for his own disappeared brother.
Perpetrators and organized crime groups have approached victim-searchers even outside the concerted humanitarian strategies highlighted above. Besides the National Search Brigade framework, the most documented case of organized crime collaboration is that of Colinas de Santa Fe. On 10 May 2016, when Mexico celebrates National Mother's Day, two men gave the mothers of Colectivo Solecito, a victims’ group, a map that pinpointed the location of Colinas de Santa Fe, north of the port of the state of Veracruz. Taking what was called by the local press “the macabre gift”, the group decided to search the ten-hectare land and found Latin America's biggest mass grave to date, with 298 bodies and more than 22,000 bone remains.Footnote 47 Another critical example of information-sharing took place in Tijuana, where anonymous and very precise messages detailing the location of mass graves were sent to the father of a disappeared boy. This led to the discovery in 2009 of a site in Ojo de Agua, an area bordering the United States, in which bodies had been chemically dissolved and buried, leaving them impossible to forensically identify. After this discovery, a former bricklayer was detained and confessed to having “taken care of” approximately 300 bodies as part of his job for the Sinaloa Cartel.Footnote 48 A third case was recorded in Nayarit, where an anonymous informant told the father of a disappeared person that they had “precise information of about 20 clandestine graves ordered by officers of Nayarit's Prosecutor's Office, including the Nayarit Police”.Footnote 49 This information led the victims’ group Colectivo Familias Unidas por Nayarit to search for and find a total of thirty-three bodies in three different clandestine graves in January 2018.Footnote 50
Admittedly, there have also been instances of anonymous communications claiming to have relevant information about the fate and whereabouts of disappeared persons that have turned out to be false, or even used against the families in (sometimes successful) attempts at extortion.Footnote 51 Other times, perpetrator-initiated communication has been made while demanding ransoms, or has even tragically ended with the disappearance and eventual homicide of hopeful relatives after meeting up with people who promise information.Footnote 52 Therefore, while there are examples of fruitful perpetrator-initiated communication, there are also numerous unsuccessful instances that have led to crimes against and further victimization of the families of disappeared persons. Here again, the issue of safety is pre-eminent, highlighting the need for an alternative that continues to allow citizen-led searches while reducing the inherent risks of such activities.
Organized crime cooperation for field searches
The third type of collaboration relates not to information-sharing per se but to removing obstacles to search efforts. On some occasions, victim-searchers are granted permission to access territories under the de facto control of organized crime groups and are even given their protection during the search. Stemming from the fact that a considerable part of the Mexican territory is either directly or indirectly controlled by different organized crime groups,Footnote 53 searches for the disappeared encounter the additional obstacle of processing fields under the command of such groups. Most of the examples given so far have taken place on the former lands and properties of organized crime groups, either abandoned or retaken by the Mexican State. Nevertheless, it is unclear to what extent search plans have been halted or affected due to the inability of both victim and State searchers to access identified mass graves. The fact that citizen-led searches have higher possibilities of gaining said access, made possible thanks to the humanitarian discourse surrounding grassroots search activities, is remarkable: “There are zones which neither the police nor the army can enter, but they let the [National Search] Brigade in.”Footnote 54
Evaluating current needs for fostering collaboration with organized crime
As seen so far, the pressing need for information on the disappeared and the fact that the law does not provide mechanisms for effective collaboration with organized crime groups have generated practices that entail severe risks to families, people who conduct searches, and even collaborative members of organized crime groups. Furthermore, the limited options available for collaboration result in a failure to accommodate the needs of the families of the disappeared and to take advantage of the willingness to cooperate that organized crime groups have shown.
In particular, the fact that organized crime groups have responded positively to humanitarian proposals in various cases, and have even replicated this approach unilaterally, disrupts assumptions about perpetrator cooperation. The idea that perpetrators are unlikely to come forward willingly and that revealing the truth is never in their interest,Footnote 55 although true in some contexts, proves to be insufficiently nuanced when looking more closely at practice. The logic of the “carrot and stick”, consisting of approaching perpetrators with either threats of prosecution or rewards for their cooperation (amnesties being the most popular example of the latter), might not be the only motivation for perpetrators to share information. For instance, besides the examples given so far related to Mexico, another precedent lies with the work done by the Truth and Reconciliation Commission for Sierra Leone. While it lacked the power to grant amnesty to perpetrators that came forward, and could not guarantee, either, that the Special Court for Sierra Leone would not use their testimonies in eventual criminal proceedings,
[i]t is a fact … that many perpetrators did come forward and cooperate with the Commission and this despite either the absence of a carrot or the presence of a stick. The willingness or reluctance of perpetrators to participate … may have far less to do with promises of amnesty or threats of prosecution than many think.Footnote 56
It cannot be denied that some perpetrators, especially those already serving sentences, and persons deprived of their liberty who possess information relevant to the search for the disappeared, may indeed only be willing to collaborate if reduced sentencing or some other benefit can be offered to them. However, examples like these invite us to think about the possibility of seeing perpetrator collaboration under a broader perspective. As social actors are not defined by a single identity but represent a complex mix of cognitive structures,Footnote 57 further aspects that shape their world views ought to enter into our analysis. An important example of these missing aspects is religion, which “can often act as an independent motivating force in politics by functioning as the lens through which actors understand the world and their role there-in”.Footnote 58 For a more in-depth analysis of perpetrator motives and incentives for collaboration with truth-seeking or even accountability mechanisms, scholarship must contest frozen identities and go beyond exclusive legal understandings of the social actors involved. As perpetrators – and organized crime groups, for that matter – are neither homogenous groups nor exclusive categories,Footnote 59 different strategies for enhancing collaboration, beyond the “carrot and stick” logic of legal proceedings, should be put in place.
For this purpose, the humanitarian approach in the search for the disappeared offers an alternative for new collaboration strategies. Indeed, what the typologies of informal practices have in common is an underlying logic of humanitarianism, either implicit or explicit, from which a discourse of confidentiality, and even mercy – sometimes with clear religious undertones – in alleviating victims’ suffering, is built. Citizen-led searches in Mexico have been pushed towards creating their own understandings and practices of a humanitarian approach: to be a humanitarian and to sideline – though without forgetting – the fight for justice has been, for some, the best option for getting answers and for owning processes of truth from the grassroots.
Pathways towards a broader humanitarian understanding
Recently, more comprehensive understandings of what a humanitarian approach to the search for disappeared and missing people entails have been developed in international fora. For example, Monique Crettol, Lina Milner, Anne-Marie La Rosa and Jill Stockwell argue in favour of a humanitarian approach, constructed as one which does not inquire as to who is responsible for the disappearance and properly manages confidential information as a key instrument for obtaining information from reluctant witnesses and perpetrators.Footnote 60 These authors highlight the use of confidentiality and even anonymization of data as part of a protective framework to incentivize the collaboration that is needed to account for missing persons.Footnote 61 Vishakha Wijenayake is another author who has recently recalled the importance of humanitarian mandates in the context of the search for the disappeared, understanding the humanitarian approach as not only juxtaposed to the accountability approach but also complementary to it.Footnote 62 She stresses that even though police and prosecutorial investigators are effective in gathering sensitive information, they can also be unresponsive to victims’ needs, and furthermore, that families’ goals may go beyond accountability, and thus spaces for truth-seeking should be provided through more than just criminal justice means.Footnote 63
In Mexico, both the GLD and the Homologated Search ProtocolFootnote 64 claim to operate under a humanitarian principle, defined as actions focused on alleviating the suffering and uncertainty of the families of disappeared persons.Footnote 65 While broad enough to include a wide range of measures, this definition does not allude to the expanded humanitarian approach delineated above – namely, one that is separated from justice-oriented mechanisms (albeit not undisputedly soFootnote 66) and based on confidentiality. Therefore, the current search framework makes no explicit mention of or distinction between these two approaches.
Even though complementarity between the prosecution and truth-seeking logics was intended by the GLD,Footnote 67 the search framework set in place finds itself too immersed in the accountability logic and would thus be inconsistent with the expanded humanitarian approach proposed above. First and foremost, there is a general obligation for persons who have knowledge of an event that may constitute a crime to report it to the competent investigative authorities; notably, this obligation is reinforced when the person in question is a public servant who acquired said knowledge within the exercise of their public functions,Footnote 68 including authorities tasked with search activities. Moreover, not only is the National Search Commission under an obligation to collaborate, share information and maintain constant communication with crime investigation authorities in matters regarding disappeared personsFootnote 69, but it also has limited powers and therefore ought to collaborate with investigative authorities for certain search activities.Footnote 70 These provisions translate into an inability on the part of national authorities to communicate with organized crime groups in a confidential manner, or to build collaborative relationships free from prosecutorial threats or pretences. Authorities in charge of the search for disappeared persons are thus unable to work under an expanded humanitarian approach that can act independently from prosecutorial logic. Ultimately, the absence of a balance between the humanitarian and the accountability mandates has proven prejudicial for establishing collaboration with organized crime groups: systematically, the criminal law framework has been unable to establish collaboration, to yield results, or even to be practicable for prosecutors. This imbalance makes the legal framework for searches more of an impediment than a helpful tool for gathering information and communicating with organized crime groups.
Nevertheless, it is key to recognize that it is no coincidence that the search system is merged with accountability provisions and thus presents an uneven framework. In drafting the GLD, families lobbied for and worked towards a law that could effectively counter day-to-day impunity and force indifferent authorities to perform their duties.Footnote 71 Therefore, even the establishment of reduced sentencing in the GLD was met with scepticism and controversy, as some victims perceived that benefits for perpetrator collaboration were an inappropriate reward, while others recognized their essentiality.Footnote 72
Certainly, the criminal and the humanitarian approaches have been falsely dichotomized before, presenting victims with a false and unfair choice between justice and truth.Footnote 73 These experiences have highlighted the necessity of clearly defining what a humanitarian approach entails for the purposes of searching for the disappeared, from a positive (i.e., its constitutive elements, its essentiality) rather than a negative (what it is not, such as an “absence of criminal prosecutions”) conceptual construction. This strategy could be helpful to refute the dichotomy and clear up its misunderstandings, such as the equating of humanitarianism with impunity. Admittedly, some positive interpretations of the humanitarian approach have been given, such as the definition that includes confidentiality as a constitutive element. Nonetheless, positively defining humanitarian mandates by connecting them to a victim-centred approach based on the rights and needs of families would resonate more not only with those families but perhaps even with perpetrators, witnesses and the rest of society at large. With a victim-centred logic, arguments in favour of a humanitarian approach would have less chance of being translated as views against the accountability model in search activities.
Furthermore, the issue at hand is not that of favouring one approach over the other but seeking to ensure that both approaches work under a complementarity logic. Both the Guiding Principles for the Search for Disappeared Persons and the Special Rapporteur on the Promotion of Truth, Justice, Reparation and Guarantees of Non-Recurrence have advocated for equal efforts to fulfil both approaches as mutually reinforcing.Footnote 74 The aim, ultimately, is to instate a framework that allows victims’ right to – and claims for – truth to be operative, through effective collaboration schemes with perpetrators and organized crime groups, while also accommodating their right to justice.
Formalizing alternatives for effective collaboration with organized crime groups: An opportunity for the ICRC
As seen from the sections above, the Mexican search framework highlights the need for a change and expansion in order to foster effective collaboration with organized crime groups, including convicted perpetrators and persons being tried for crimes unrelated to disappearances. However, while legal reforms may well be in order, the lengthy processes involved and the scepticism – or even opposition – that some victims have towards offering benefits for collaboration within criminal prosecutions would pose several challenges. Additionally, changes at the legal level would still be insufficient to reach free and active organized crime group members who are not detained or facing prosecution, significantly narrowing the required applicability for effective collaboration. Furthermore, reforms would not accommodate the proposed humanitarian approach, inasmuch as virtually all Mexican public officials are bound to the obligation of denouncing crimes and sharing information with investigative authorities, and would thus be unable to offer confidentiality vis-à-vis prosecutions. This aspect also points to the fact that part of the success of the humanitarian approach in citizen-led searches has been precisely because public authorities are not involved; thus, the perception that organized crime groups have of the nature of the searches and the searchers bears a substantial weight on their decision to collaborate.
Hence, even if legal reforms took place, an alternative that tackles these gaps would be required. Such an alternative would also need to have the following characteristics:
• operates outside the criminal law framework without undermining it;
• practices confidentiality lawfully;
• facilitates safe collaboration by minimizing the expected risks from engaging with active organized crime groups;
• enables an adequate humanitarian image and perception.
To advance such an alternative, aimed at operationalizing the humanitarian approach to search activities, the ICRC's involvement as a fourth party in search processes (in addition to victim-searchers, Search Commissions, and prosecutor's offices), operating alongside the accountability-led framework, could be key. The following proposal explores the possibility of the ICRC engaging as an intermediary for direct communication between organized crime groups and searchers (families and authorities alike), in order to strengthen the already existing practices of informal collaboration by providing a more institutionalized, security-based approach. The idea of institutionalization, although built around the premise of reaching active organized crime groups and their members, could also apply to persons deprived of their liberty, either under criminal processes or already convicted for crimes, related or not to disappearances. This option could target a broader range of perpetrators that could have relevant information for the search. As pointed out before, perpetrators can have a broader set of information-sharing motives beyond a material quid pro quo logic. Therefore, by ensuring the confidentiality and safety of their interventions, even when no legal benefits can be offered for participating in a humanitarian information-sharing process, the existence of this alternative could encourage their participation.
Concretely, by approaching these groups and seeking either their information related to disappeared persons or their consent for searches to be carried out in their controlled territories, the ICRC could work as an initiator and facilitator of communication, as well as a receiver of information. Once in possession of the relevant information, the ICRC could share it with search authorities and victim-searchers, without revealing the source or other details that could be used to identify or prosecute the collaborative witness/perpetrator/informant, in order to uphold a strictly humanitarian mandate.
This proposal is not entirely alien to the ICRC's own agenda of humanitarian action; on the issue of missing persons, in 2003 the 28th International Conference of the Red Cross and Red Crescent delineated the goal of encouraging organized armed groups to resolve the issue of missing persons, assisting families and victims, and participating in prevention strategies.Footnote 75 Moreover, the ICRC has recognized the issue of missing persons as an integral part of its mandate and as an institutional priority,Footnote 76 centring the humanitarian approach on the needs of affected victims, including the paramount right to know the fate and whereabouts of their loved ones.Footnote 77 Most recently, the ICRC's Missing Persons Project has dedicated one of its four pillars to mechanisms to clarify the fate and whereabouts of the missing, explicitly looking at ways to ensure complementarity with other approaches besides the humanitarian one.Footnote 78 All these policies, relevant to disappeared persons, established the foundation for exploring and expanding the ICRC's work on collaborating with organized crime groups.
It is essential to recognize that the ICRC's potential participation in the Mexican context stands regardless of whether or not Mexico's context of violence can be classified as a non-international armed conflict (NIAC),Footnote 79 as it falls into the category of “other situations of violence” (OSVs). While already working on issues related to disappeared and missing persons in Mexico,Footnote 80 the ICRC has the possibility, through its right of humanitarian initiative,Footnote 81 of offering its services by expanding its current activities into actively enabling and fostering collaboration schemes with organized crime groups. Ultimately, to achieve the implementation of its humanitarian activities, the ICRC would have to seek the Mexican State's consent, while remaining clear that this offering does not constitute any sort of interference in the internal affairs of the State, and that the ICRC's further engagement would have no impact with regard to conflict classification or the legal status of perpetrators.Footnote 82
Therefore, for engaging in OSVs, if a concrete situation of violence has significant humanitarian consequences (with due regard to the nature of these consequences, their severity and their magnitude) and the humanitarian action considered by the ICRC constitutes a relevant response to the identified humanitarian consequences (analyzing the ICRC's identity and nature, and its specific competences, resources and expertise, among other factorsFootnote 83), the ICRC's involvement is not only possible but also desirable, and may even be pressing. The arguments for why the ICRC's participation would constitute an ideal response to Mexico's situation regarding disappeared persons – namely, that this situation entails humanitarian consequences to which only the ICRC's organizational nature, work policies and unique expertise can respond – coincide with the ICRC's own criteria for involvement in OSVs, as seen below.
The disappeared and their families: Significant humanitarian consequences
In Mexico, widespread violence related to organized crime since the “War on Drugs” has been considered to have triggered a humanitarian emergency, particularly taking the situation of disappearances as amounting to a humanitarian crisis.Footnote 84 In particular, disappearances, enforced disappearances and issues pertaining to unidentified bodies are among the situations recognized by the ICRC as resulting in humanitarian consequences that seriously affect people and victims outside the classification of armed conflicts.Footnote 85 Furthermore, the ICRC recognizes that its non-exhaustive list of humanitarian consequences stems from violations of international human rights law.Footnote 86 Therefore, given that international jurisprudence is unanimous in considering disappeared persons’ families’ suffering as a form of ill-treatment or even torture,Footnote 87 their situation entails clear and significant humanitarian consequences.
The ICRC's unique organizational nature and expertise: Key for humanitarian alternatives
The ICRC possesses various qualities that are relevant to the implementation of a humanitarian approach to the issue of disappeared persons in Mexico. Firstly, as an impartial, neutral and independent organization with an exclusively humanitarian mission, the ICRC has a unique nature that can constitute an alternative outside and parallel to the criminal law framework. As the ICRC's approach to disappeared persons remains exclusively focused on the humanitarian imperative of the families’ need to know the fate and whereabouts of their disappeared relatives, it does not participate in accountability processes, while still acknowledging families’ rights to and demands for justice.Footnote 88 In this regard, the ICRC's practice is to inform victims of the available mechanisms and opportunities for seeking justice, avoiding undermining their capacity for self-protection and their right to participate in these processes.Footnote 89 As such, the ICRC operates in parallel with accountability mechanisms, and for Mexico, this means that no lengthy reform process or any compromise of the criminal law framework would have to occur to operationalize the proposed humanitarian approach. In turn, this would allow the existing accountability structure to continue its anti-impunity work while the humanitarian approach is truly operationalized, enabling a more symmetrical interaction between the two. As there exists great asymmetry between the two approaches, prima facie disregarding the complementarity principle, strengthening the humanitarian approach is imperative if a truer form of mutually reinforced approaches is to be achieved.
Secondly, as the ICRC does not participate or cooperate in accountability processes, it can work on a confidential basis. Indeed, ICRC staff enjoy a general evidentiary privilege, consisting of the privilege of non-disclosure and testimonial immunity, and as such, they cannot be compelled to provide information to investigative authorities or courts.Footnote 90 The reason for this is clear: if the information given to the ICRC under confidentiality clauses “were used in legal proceedings in favour of or against one of the parties to an armed conflict, this would inevitably undermine the perception of – and trust in – the ICRC as truly neutral in that conflict”.Footnote 91 Confidentiality as a working method has thus historically allowed the ICRC to establish and maintain effective dialogue with armed non-State actors and to protect its personnel, as security is primarily based on the parties’ recognition of the organization as neutral, impartial and independent.Footnote 92 These evidentiary privileges are completely unique to the ICRC,Footnote 93 and as such, no other humanitarian organization or even government authority, including the National and Local Search Commissions, could offer the confidentiality guarantees that the ICRC can. Hence, only through the ICRC can those perpetrators and organized crime group members willing to collaborate be ensured – to a certain extent – that the information they give will be used solely for the humanitarian purpose of finding the disappeared. Nevertheless, this guarantee is admittedly limited. While the ICRC can indeed ensure that no personal information of the informant will be shared with searchers, the sole use of said information to search for and find disappeared persons can yield evidence that could, eventually, be used for criminal investigations and procedures.Footnote 94 This aspect illustrates why, by strengthening the humanitarian approach, its accountability counterpart is not per se diminished but is actually reinforced – i.e., complementary.
Thirdly, the ICRC has a reputable history of humanitarian engagement with armed non-State actors. This work has been deemed a precondition for its safe access to persons and territories affected by OSVs, and as the only way to ensure that these groups understand the neutral, independent and impartial mandate of the organization.Footnote 95 Therefore, as the safety of ICRC beneficiaries and staff is always a pressing concern, the acceptance of this neutral, impartial and independent nature is what allows the ICRC to work with armed groups and could, eventually, permit groundwork with organized crime groups. Safety-wise, this engagement could fill the gap between the current needs of the search for disappeared persons and the current capacities of citizen-led searches. Whereas the latter have developed considerable practical knowledge around communicating, petitioning and collaborating with organized crime groups, security issues continue to be among the most significant concerns when carrying out their activities. The inclusion of the ICRC as a mediator of communication and information-sharing between organized crime groups and victim-searchers could mitigate the risks to both parties. While the latter would not have to expose themselves, organized crime group members willing to collaborate could have the added guarantee that their cooperation would be confidential. Accordingly, confidentiality could lessen the risks of prosecution-related repercussions, as well as repercussions from within organized crime groups’ own ranks.
Finally, to approach organized crime groups from a purely humanitarian interest (i.e., finding the disappeared), with confidentiality guarantees, fosters the perception of the ICRC as a neutral, independent and impartial organization. As mentioned before, citizen-led searches have been successful partly because of the image they give to organized crime groups; by not being authorities or rival groups, they can establish dialogues from an exclusively humanitarian standpoint. The ICRC could mirror and strengthen this image, and in turn this perception can function by itself as an incentive for establishing trust and collaboration. Moreover, as the ICRC is positioned as an international organization with no dependence on the Mexican government, it can effectively sidestep the political strife not only between organized crime and the State but also between organized crime groups themselves, and thus be perceived as an external actor with a limited, humanitarian interest.
On the dangers of the “humanitarianization” of organized crime-related violence
As humanitarian organizations have steadily expanded their mandates to include urban settings –along with organized crime and narco-trafficking-related violenceFootnote 96– the phenomenon of “humanitarianization of urban violence” has encountered a critical series of concerns that warns against the costs of this new framing. Among scholars’ concerns are governments’ avoidance of political responsibility vis-à-vis the impartiality and neutrality of the humanitarian frame, the sidelining of development and redistributive strategies, the depoliticization of international responsibility regarding light arms and narcotics-related violence in Latin America, and the possibility of undermining contentious social movements.Footnote 97 For the ICRC, the costs have been associated with its neutrality, as it has engaged with violence reduction activities by deterring people from joining armed groups, classified armed actors according to their motives, and established dialogues predominately with national authorities but only to a lesser extent with non-State armed groups.Footnote 98
While these concerns are related to the general expansion of the humanitarian field and are thus not specific to the present proposal of expanding ICRC activities for disappeared persons, they are still pertinent cautions moving forward. The concepts of complementarity and a victim-centred approach already delineated in this paper are vital for addressing them. The expansion of the humanitarian approach with the sole aim of fostering collaboration with organized crime groups for disappearance-related issues is a very targeted proposal of humanitarianization, based on victims’ needs, and therefore does not necessarily entail a depoliticization of the overall context of violence. As the inclusion of a humanitarian approach seeks to work as an added value, complementary with all other existent structures and policies put in place, it would not entail a superposition of the humanitarian framework or a choice between the “political” and “apolitical” strategies for addressing high levels of violence.
Furthermore, engagement with organized crime groups could present an opportunity for the ICRC to strengthen its neutrality practice. Whereas the ICRC's humanitarian dialogue tends to be weaker with non-State actors for reasons beyond its control, in many urban violence contexts those limited relationships have been denounced as partly a policy of choice due to the cautiousness of engaging with parties deemed as having primarily criminal or economic motives.Footnote 99 Therefore, by engaging with organized crime groups for the humanitarian imperatives of finding the disappeared, the ICRC's commitment to enter into dialogue with all relevant parties for humanitarian purposes can be reinforced.
Conclusion
The situation of disappeared persons in Mexico calls for innovative approaches to address victims’ rights and needs, and among them, the question of collaboration with organized crime groups needs greater attention. To this end, this paper has advanced a proposal towards a broader humanitarian understanding of the search for the disappeared through the involvement of the ICRC, based on the shortcomings of the current legal framework and informed by the practices and demands of the field. The potential added value that the ICRC could bring to the Mexican context could be complementary to all of the ongoing justice and prosecutorial efforts and, as such, could reinforce a victim-centred approach to disappearance-related issues.
Additionally, this paper has questioned the traditional conceptions of perpetrator collaboration based on the “carrot and stick” logic. If the human rights field can break through the victim–perpetrator dichotomy and acknowledge that the more systematic violence there is, the more closely linked these two actors are, significant progress in truth-seeking and even justice mechanisms could take place. For this purpose, further interdisciplinary researchFootnote 100 on the motives, incentives and identities of organized crime groups and perpetrators beyond legal considerations – the roles of religion, ideology, socio-economic status etc. – could be a step forward.
Finally, the proposal that the ICRC should engage with organized crime groups for humanitarian purposes inserts itself within a wider frame of current challenges and questions for the humanitarian field, such as the humanitarianization of urban violence and the unique contributions that the ICRC as a lead humanitarian actor can bring to contemporary violence issues. While the humanitarian approach to disappeared persons has gained considerable attention in post-conflict contexts, further discussion is needed on its possible contributions and pitfalls for situations that escape the dominant paradigms of NIAC classification. If this discussion is to be meaningful, however, it must take place first and foremost with victims and affected communities as active participants with agency.
