SIPR LeRoy

Abstract

Transitional justice aims to break cycles of violence and retribution committed by state and non-state actors alike. This article explores Mexico’s longstanding drug conflict, a catastrophe exacerbated by corruption and disastrous policy interventions. Andrés Manuel López Obrador won the presidency in 2018 on a “hugs, not bullets” peace campaign, but thus far his administration’s narcotics policies have only delivered air hugs of empty promises. At a time when transitional justice resurfaces in North American political discourse and Mexico confronts fresh scandal, this article’s strategy—use of an independent Truth and Reconciliation Commission and a Hybrid Prosecutor’s Office to document the truth, apportion amnesty, and hold perpetrators accountable—offers a more compassionate and effective blueprint for addressing the drug war’s many pernicious symptoms.

In early 2016, Mexican Marines tracked the elusive Joaquín Guzmán, drug lord of the Sinaloa Cartel, to a coastal compound.[1] The raid handed President Enrique Peña Nieto a major victory. With an American official describing the arrest as “a Mexican op, planned and executed by Mexico,” Nieto impressed critics at home and abroad who questioned his government’s sincerity and effectiveness in combating the nation’s drug epidemic.[2]

Mexico soon extradited Guzmán, better known as El Chapo, to the United States, removing him from his syndicate of smugglers and government insiders. Officials in both countries felt confident they could secure his imprisonment through the American judicial system, where prosecutors had already indicted El Chapo on drug, weapons, and racketeering charges.[3] The trial was a dramatic affair marked by confessions of love from the stand, cartel threats against jurors, and bribery implications against Peña Nieto himself.[4] The proceedings detailed the violent business of a cartel which cost 100,000 people their lives and damned countless more to addiction and financial ruin.[5]

In February 2019, the American jury found El Chapo guilty on all counts. While many in the United States celebrated, his life sentence in a foreign prison received a decidedly mixed reception back home. Mexico’s new president, Andrés Manuel López Obrador, denounced the punishment as “inhumane.”[6] In Sinaloa, El Chapo’s home state, residents lamented the loss of a community figure viewed not as a criminal pariah, but as a local benefactor. As one resident explained, “The truth is this [conviction] hurts…We know that he’s helped a lot of people, building roads, schools, churches. People here will suffer now due to lack of support.”[7]

El Chapo’s case illustrates the challenges Mexico faces in defeating the cartels and repairing the damage. Organized crime divides Mexican society, law enforcement, and government. Some factions pledge loyalty to the drug lords who offer contingent security and prosperity to neglected segments of the population. Others fiercely resist the cartels, desperate to protect their loved ones and find closure for the ones they have already lost. Amid profound suffering and tenuous alliances, there is no consensus on what will bring Mexico peace, justice, and prosperity. But all agree: a single conviction in New York will not suffice.

The War is Over. Now What?

While Mexico’s narcotics epidemic traces back to the 1960s, its war on drugs began in earnest in 2006 with President Felipe Calderón’s cartel crackdown, and it continues to wreak havoc to this day. Fearing that criminal organizations had infiltrated local police, Calderón deployed federal troops to apprehend dozens of kingpins. His successor, Peña Nieto, similarly relied on the military to combat violence. The United States invested substantially in these efforts. Calderón and U.S. President George W. Bush launched the Merida Initiative in 2007 which provided billions in aid to disrupt trafficking networks, secure the U.S.-Mexico border, protect the rule of law and human rights, and stimulate economic development.[8] Despite these efforts, the national homicide rate tripled from 2006 to 2018, with experts attributing between one-third to one-half of cases to drug activity. In Calderón’s six-year term alone, up to 60,000 people died at the cartels’ hands.[9] Tens of thousands more remain missing.[10]

In January 2019, shortly after assuming the presidency as a left-wing populist, López Obrador declared the end to his country’s war on drugs. “There is officially no more war. We want peace, and we are going to achieve peace.” His critics, seizing on López Obrador’s military-centric security strategy, questioned whether he genuinely intended to break with establishment policies.[11] Security doves feared López Obrador’s new National Guard—nominally charged with fighting the cartels but in reality patrolling the border to appease U.S. President Donald Trump—would detract from crime prevention and enshrine military supremacy at the expense of rebuilding Mexico’s civilian law enforcement capacity.[12]

Nevertheless, López Obrador campaigned on national reconciliation and development, a radical departure from previous presidencies. He signaled openness to détente with slogans such as “hugs, not bullets,” “scholars yes, killers no,” and “you can’t fight fire with fire.” Even his secretary of security and civilian protection reframed the military and law enforcement as a “last resort.” The López Obrador administration pledged to treat the epidemic’s root causes through social programs, education funding, and employment opportunities. His platform further promised to pardon nonviolent drug offenders, provide reparations to victims, and professionalize police services with better pay and training.[13]  

López Obrador’s aspirational peace plan requires a justice system with robust capacity, integrity, and credibility, attributes which existing Mexican law enforcement institutions lack. Reflecting public mistrust of the system, 94 percent of crimes in Mexico go unreported. With only four percent of reported crimes resulting in punishment, many citizens consider calling the police a waste of time.[14] Overall dissatisfaction with local police exceeds 70 percent on average across the country, with negative perceptions reaching 84 percent in Acapulco.[15] Shortages of police officers and prosecutors certainly contribute to these failures, but so do more nefarious factors. Corruption pervades law enforcement, with cartels easily out-bidding government wages to win favor.[16] Police engage in nepotism, criminal collusion, and outright bribery with alarming ubiquity. Research suggests that bribe solicitation, which occurs in Mexico more than in any other Latin American country, explains citizen distrust more than high crime and other poor security outcomes. Stated differently, citizen complaints appear to stem primarily from police duplicity, not incompetence. Accordingly, recent policies to expand and cosmetically rebrand police agencies without instilling rigorous accountability controls will likely fail to earn law enforcement much credibility.[17]

Mexico’s federal judiciary remains tarnished by political patronage. The Constitution of 1917 empowered the Supreme Court to appoint and monitor all lower court judges. While the high court’s members were originally accountable to the legislature by impeachment, an amendment in 1944 established life tenure for justices, subject to removal only through presidential prerogative. The absence of checks and balances combined with pressures to rapidly expand the judiciary insulated the courts from oversight. A political hierarchy solidified whereby the Supreme Court appointed and promoted allies to the single-party government and its cartel associates. In 1976, evidence linked several judges to a drug trafficking network, yet the Supreme Court sought only to transfer them, not remove or prosecute them.[18] 

Efforts to reform the courts have yielded mixed results. The Mexican Judicial Council, established in 1994, reduced the Supreme Court’s influence over judgeships. Council members, selected by lottery from all levels of the judiciary, instituted public examinations for admission to the bench and regulated performance evaluations for promotion.[19] In an effort to separate powers between law enforcement and the judiciary, federal law enacted in 2008 required all Mexican states to adopt an accusatorial rather than inquisitorial criminal procedure system. While helpful in restraining the courts’ prosecutorial influence, early findings suggest these changes have not substantially improved public confidence in criminal justice institutions.[20] Public servants still sense systemic vulnerabilities too. While they report a decrease in corruption due to the judiciary’s professionalization and improved civil service career tracks, improprieties persist in the absence of adequate training, deterrence, and whistleblower protections.[21]

Complicating matters further, even an effective, credible justice system would struggle to resolve decades of violence and grievances when the lines between victims and perpetrators blur. As the hometown affection for El Chapo’s philanthropy demonstrates, the drug trade has created unexpected beneficiaries out of bystanders, not just victims. Ironically, low-level cartel members were often themselves victimized by society. Many drug runners describe themselves as social outcasts who view their trade as the logical if not exclusive economic path out of poverty. They describe committing violence as necessary to survive amid poverty and retaliate against perceived government aggression.[22] These nuances suggest the conflict’s blame lies not just with the cartels but also with decades of failed policy, a conclusion which complicates who deserves redress, who deserves punishment, and who deserves amnesty. Answering these questions nationally requires policymaking structures and resources beyond the current criminal justice system’s capabilities. Where a traditional justice system has failed, a transitional justice system might succeed.

Competing Visions for Transitional Justice

Transitional justice "embodies an attempt to build a sustainable peace" through a “set of practices, mechanisms, and concerns that arise following a period of conflict, civil strife or repression, and that are aimed directly at confronting and dealing with past violations of human rights and humanitarian law.”[23] Specific transitional justice structures vary, but most share the ability to enshrine historical records and personal experiences into official state memory, try high profile leaders accused of wrongdoing, and restore victims’ rights.[24] Mexico, qualifying for such intervention on scale and substance, would benefit from transitional justice’s remedies. No matter what any president claims about the drug war being “over,” its associated violence remains one of the world’s greatest humanitarian crises. As recently as 2016, it was the second deadliest conflict behind the Syrian civil war.[25] Qualitatively, Mexico shares important characteristics with other countries which incorporated transitional justice into their own peacebuilding efforts: countless unsolved crimes, impunity for perpetrators, resentment against the government’s inattentiveness and ineffectiveness, emerging democratic institutions, and a judicial system of questionable independence.

Scholars and practitioners disagree about what transitional justice should accomplish. After all, someone must decide “what the state is ‘transitioning’ to.”[26] On this crucial point, transitional justice has received widespread criticism for narrowly privileging the pursuit of legal justice and political liberalization over addressing socioeconomic inequities and other, non-political forms of violence.[27] Harsher scrutiny comes from experts who allege transitional justice—championed by an increasingly hegemonic class of international bureaucrats and donors—denies recovering communities their self-determination.[28]

Each contention merits serious consideration. Should transitional justice marginalize socioeconomic issues, such campaigns might fail to remedy the first order societal problems which internally conflicted nations confront. Legal justice rings hollow without stable access to water, education, healthcare, or other daily necessities. Likewise, transitional justice scripted to generic international norms might fail to broker peace. A society which prizes communal accountability would gain little value, for example, from a process which prosecutes a select few individuals in distant capital cities or in international courts. Without attention to local conceptions of justice, peacebuilders could clumsily inflame tensions.

A spectrum emerges from this scholarship, presenting difficult tradeoffs for peacebuilders. On the incremental side, paradigmatic transitional justice seeks redress simply for political violence and civil rights abuse through state and multinational institutions. Revolutionary transitional justice, by contrast, strives for social justice, redistribution, and democratization through whole-of-society interventions.[29] Some general principles help manage this balance in crafting a transitional justice strategy.

First, transitional justice should complement other peacebuilding policies to relieve it from the pressure of correcting all socioeconomic wrongs. While many would normatively prefer the social transformation vision of transitional justice, ambition must negotiate with reality. Unmet expectations risk disenchanting participants from the peace process altogether. Case studies presented in this article’s review of truth and reconciliation commissions will demonstrate the pitfalls associated with asking too much from nascent institutions with limited financial resources and political capital. A more deliberate strategy restraining transitional justice to human and political rights will not bring holistic change overnight, but it will create a shared acknowledgement of social needs, build popular momentum to address those issues, and prevent political spoilers from blocking progress. Transitional justice can therefore presage a diversified second generation of peacebuilding policies spanning electoral participation, security reform, development, and redistribution. Collectively, this piecemeal approach stands a better chance at success than pressing all bets on one legal intervention.[30]

Second, while transitional justice should avoid dismissing local norms of justice, outside expertise and international institutions acting in good faith can help. In a conflict’s tense aftermath, raw emotions and resource shortages often hinder local parties from resolving disputes by themselves. [31] Social change might stall without the neutrality and capacity external support offers, if provided with the host nation’s consent. Securing cooperation, especially in a policy field where normative aspirations differ sharply, depends on transparency and appeals to shared values. [32] This tension will naturally moderate the polarization between revolution and incrementalism.

To withstand criticism and earn support, an effective transitional justice campaign must define, justify, and adapt its goals. While the affected parties themselves must ultimately reach these determinations, this piece now proposes a transparent strategy for transitional justice—a vision for what Mexico might transition to—first by establishing outcomes the Mexican government should desire and then by suggesting a structure informed by historical and comparative analyses to achieve those hopes.

A Transitional Justice Strategy for Mexico

Mexico’s transitional justice system must first document the comprehensive truth about the drug war’s atrocities, a conventional claim requiring renewed defense. Many experts in the field challenge the assumption that publicizing the truth advances peacebuilding. Some argue that, because of people’s psychological response to tragedy, “selective forgetting is even more important” than remembering.[33] Learning the truth might counterproductively impede reconciliation as people digest new facts which reinforce animosity.[34] By encouraging people to come forward to share their narrative, transitional justice discounts the role silence plays in revealing injustice.[35] Nevertheless, evidence from Chile’s transitional justice process demonstrates that even victims themselves believe truth-telling performs a valuable, if incomplete, role in societal reckoning.[36] Although it is difficult to generalize across conflicts, these findings underscore an important understanding about the truth: it is insufficient by itself, yet still necessary to create an evidentiary basis for systemic accountability and institutional sector reform. Preserving a historical record with an honest, equitable accounting of victims and responsible parties therefore fulfills a vital public interest.

Second, this effort must provide an appropriate level of amnesty which balances political inclusion and social harm reduction against justified punitive consequences. As an industry, Mexico’s cartels employ an estimated half-million people. Many thousands more, working for the government, inflicted state-sponsored violence in response.[37] No law enforcement system could prosecute every drug war participant; even if one could, it would likely harm social welfare given the detrimental outcomes associated with lengthy pre-trial detention and mass incarceration.[38] Amnesty policies avoid these consequences and benefit the peacebuilding process by emphasizing accountability for high-level perpetrators. Legal pardons incentivize those who might otherwise spoil transitional justice to participate in truth-telling and testify against their leaders, allocutions which would satisfy the need for broader acceptance of responsibility and social shaming. Especially when linked with trials, amnesty ultimately provides stability and advances human rights by breaking up corrupt centers of power.[39] Although amnesties appear to bear little direct effect on diminishing electoral manipulation, the policy contributes to democratic consolidation by including potential spoilers in the state’s political rebuilding.[40] Well-designed amnesties can thus advance peacebuilding processes, contrary to objections that they reinforce impunity, treat offenders inequitably, and deny victims justice.[41]

Third, once the transitional justice process has produced a comprehensive state narrative aided by confessions tendered under amnesty, the effort must leverage those findings to end impunity. Since the height of democratic sentiment at the turn of the 21st century, coinciding with the end of Mexico’s single party rule, the public has become largely dissatisfied with democracy. Although elections have grown competitive with alternating parties in power, people have yet to discern meaningful improvements in their lives. Many citizens regard their representatives as corrupt and self-interested, a perception based on considerable evidence.[42] Without discounting the importance of trying cartel leaders and crony business executives, any government carries a special responsibility to punish public corruption. Fulfilling this obligation would reap great rewards. Aggressive prosecution of corrupt officials not only promotes faith in democratic institutions but also leads to improvements in the rule of law and human rights.[43]

Document the truth, apportion amnesty, and prosecute corruption. By current academic standards, this strategy advances an admittedly limited vision of transitional justice. It need not, however, foreclose subsequent socioeconomic and institutional reform. In fact, well-structured transitional justice mechanisms following this strategy would inform precisely those societal transformations. But even independently, this plan would provide closure for countless victims, restore faith in democracy, protect rights, and accelerate reconstruction by removing spoilers from power.

Among many possible policy mixes for fulfilling this strategy, Mexico should establish a truth and reconciliation commission (TRC) and a hybrid prosecutor’s office (HPO). Unstained by cartel influence and legacies of party domination, a TRC would collect official histories and offer amnesty in collaboration with the HPO which would pursue high-profile prosecutions. To chart a course towards structural reform, the TRC would offer legislative policy recommendations while the HPO would build state capacity to professional standards. The remainder of this piece champions the merits of both interventions as suitable vehicles to implement this strategy. The analysis draws best practices from comparative contexts, explores Mexico’s own history with each institution, and assesses political feasibility to develop specific structural recommendations.

Truth Heals Some Wounds

TRCs collect individual narratives from victims and perpetrators to document a state-sanctioned history of genocide, apartheid, political terror, or other societal violence. By empowering the persecuted to share their stories, TRCs help to bring closure to the previously voiceless by elevating their grievances into collective memory. TRCs further help victims heal by revealing new evidence which may assist them in seeking reparations, legal damages, or answers about their loved ones. By demanding testimony from oppressors, TRCs acknowledge wrongdoing, expose power structures, and assign warranted blame to help the public understand state failures. These forces “pull the whole country together” and create a legacy of remembrance to help society move forward without repeating mistakes.[44]

Established as temporary official bodies, governments around the world—in developed and developing countries, at national and sub-national levels—have organized TRCs to resolve conflict. They operate differently, each growing from particular social pressures and policy choices. Some TRCs emerge directly from peace accords while others receive their charge from executive mandate, legislative action, or judicial order. Generally led by commissioner boards which can include international participants, TRCs receive funding from a mixture of their home governments, aid foundations, private investment, and the international community. Most consequentially, TRCs diverge in their powers and purposes. Some TRCs simply summarize findings from voluntary testimonies. Others bear compelling investigatory powers to fulfill quasi-judicial and legislative functions, such as granting amnesty, referring individuals for prosecution, and proposing policy reforms to their government.[45]

TRCs’ unlimited permutations could disorient peacebuilders in adapting this mechanism to the Mexican drug war. A critical review of TRCs across comparative contexts and within Mexico’s own history clarifies how best to structure one compatible with this piece’s proposed transitional justice strategy and the country’s political realities.

Following apartheid’s collapse, the Republic of South Africa commissioned the world’s most famous TRC. Established by law under the Government of National Unity, parliament charged the TRC with painting “as complete a picture as possible of the nature, causes, and extent of gross violations of human rights.”[46] A memorable exchange in 1996 between Bishop Desmond Tutu and Lucas Baba Sikwepere, an African National Congress activist, attests to TRCs’ personal healing potential. Sikwepere was abducted and tortured by white police officers during apartheid, ostensibly for harboring illegal arms. His injuries permanently blinded him soon after his imprisonment. In describing how authorities robbed him of his vision, Sikwepere felt momentarily whole again: “I feel what has been making me sick all the time is the fact that I couldn’t tell my story. But now it feels like I got my sight back by coming here and telling you the story.”[47] 

South Africa’s TRC wielded broad powers and public influence. Parliament granted the commission authority to conduct searches and seizures, issue court-enforced subpoenas, propose policy recommendations to preserve human rights, and offer individual amnesty. To accomplish these goals, the government invested the commission with unprecedented financial and human resources.[48] Proceedings commanded massive media attention, with daily radio broadcasts and weekly television summaries airing revelations around the world. Still, not everyone shared Sikwepere’s cathartic relief. Many balked at the TRC’s amnesty offers and questioned the perceived prioritization of reconciliation over accountability. One contemporary public opinion poll even suggested two-thirds of South Africans expected race relations to deteriorate further from anger over the exposed atrocities.[49]

Fortunately, South Africa avoided a reversion to apartheid-level racial violence. Beyond that, however, whether the TRC materially advanced national unity remains ambiguous. Studies on interracial reconciliation often reach contradictory conclusions. One study, surveying nearly 4,000 respondents, suggested that exposing apartheid abuses softened white South Africans’ racial attitudes. Another paper, however, indicates that the 1,000 amnesties granted by the TRC instilled more resentment among black South Africans. Assessing the TRC’s effectiveness, it appears, depends on to whom and how you ask the question.[50] Measurement challenges in assessing such nebulous feelings as reconciliation explain some of the difficulty in reaching firm conclusions on the TRC’s effect on racial progress. In this case, as with surveys of post-conflict reconstruction broadly, revealed attitudes often differ from stated attitudes. While some early analyses suggest a positive correlation between the TRC’s restorative mechanisms and interracial reconciliation, a more recent neurological study reveals pervasive strands of implicit prejudice among white South Africans.[51]

Perhaps more of the uncertainty arises from a scholarly tendency to overgeneralize. South Africa’s TRC, dated 1996-2000, was neither a wholesale failure nor triumph. The TRC clearly succeeded in diminishing white denial of apartheid’s atrocities. The commission’s highly public proceedings, which included testimony from not only individuals but also respected media, legal, medical, and commercial institutions, inspired ubiquitous civic engagement and public acceptance of findings.[52] These attitude changes mattered, contributing to an “independent influence” on democratization.[53]  In other respects, the TRC overpromised and underdelivered. Along with committees studying human rights violations and amnesty, the commission supervised a board dedicated to reparations and rehabilitation. This structure failed, however, to deliver timely, adequate remedy to victims, partially because the TRC’s narrow focus on human rights obscured the truth about ordinary daily suffering. As a result, the TRC failed to facilitate the promised redistribution to overcome South Africa’s socioeconomic disparities, which persist and continue to impede racial reconciliation to this day.[54] Nevertheless, on balance South Africa’s TRC proved worthwhile, even if not completely satisfactory.

Other TRCs fared worse, blunted by weak mandates and marginalized by defiant governments. Following decades of state repression and militia violence, Guatemala created the Commission for Historical Clarification (CEH) in 1994 to comply with a United Nations peace agreement. Unlike its South African counterpart, the CEH lacked authority to name responsible actors, refer individuals for judicial action, issue subpoenas, or even hold public hearings.[55] The CEH documented systemic human rights violations and advised the government to pursue reparations and high-level prosecutions, but most of their recommendations were ignored by disinterested elected officials across multiple administrations.[56] Ten months after the report’s public unveiling in 1999, Guatemala’s fragile post-war government lost in an electoral blowout to a coalition linked with the former military dictatorship responsible for many of the conflict’s worst atrocities. The result doomed the CEH’s progress to irrelevance.[57]

Mexico itself bears a history with truth commissions, one which tracks closer to the Guatemalan than the South African experience. When Vicente Fox won the presidency in 2000, breaking the Institutional Revolutionary Party’s (PRI) 71-year primacy, he pledged to establish a truth commission to investigate the former regime’s human rights abuses. He signed an agreement with the UN High Commissioner for Human Rights, but his commitment met swift resistance from the PRI’s opposition in the federal legislature and state governments. His own administration’s appointed reform czars, a group which fatefully included a PRI-affiliated military prosecutor accused of human rights violations, also hindered Fox’s agenda.[58] Fox could not discard his campaign promises entirely, personally authorizing a truth commission to support the new National Security and Investigation Center (CISEN). Old-guard sympathizers wrestled CISEN’s control away from Fox, however, and blocked the truth commission’s report from publication.[59] At best, Mexico’s truth-telling attempts contributed little to national reconciliation and democratization. At worst, they legitimized new elites who maintained the country’s culture of political violence and military domination through conciliatory yet empty rhetoric.[60]

Although collectively these case studies paint a dispiriting picture of TRCs, lessons from their shortcomings offer insights on how Mexico could design a better iteration. From South Africa’s example, the Mexican government should appreciate the importance of managing expectations. A more compartmentalized vision of a TRC within transitional justice stands a better chance of fulfilling promises, and therefore of earning public legitimacy. Limiting the commission’s role to truth telling and amnesty would avoid repeating South Africa’s error in charging its TRC with economic redistribution without requisite resources or scope.[61] With the TRC’s boundaries better defined, the Mexican government must next appeal to cultural norms of forgiveness to justify the commission’s finite role in peacebuilding.[62] That national conversation must begin with a candid explanation, as offered in this paper’s strategy, of the importance of documenting truth, apportioning amnesty, and referring leaders for prosecution as valuable ends themselves and indispensable means towards more fundamental social reform.

Guatemala’s failed truth commission informs how Mexico should empower its own TRC to achieve stated objectives. Unlike the CEH, a Mexican TRC must wield autonomous authority to operate publicly, subpoena evidence, identify perpetrators, pardon deserving offenders, and refer others for prosecution. Without these powers, a TRC would struggle to solicit candid testimony and transparently answer the public’s questions. The TRC should not receive law-making powers, however. South Africa’s case suggests that quasi-legislative TRCs struggle to meet their lofty expectations. With their superior institutional capacity and credibility deriving from electoral accountability rather than indirect appointment, genuine legislative bodies are better positioned to implement sustainable social and economic reform. A truth commission should nonetheless advise the legislative process. Peacebuilders must prevent the government from discarding the TRC’s report and any attendant policy recommendations on social welfare, domestic security, criminal justice reform, and anti-corruption protections. Accordingly, the TRC’s charge should mandate that the incumbent administration publish and archive the commission’s conclusions. Should the commission offer policy recommendations, the law should require legislative review or constitutional referenda to consider their proposals. While no guarantee of passage, such mandates would encourage public debate and reinforce electoral pressure to respond to social demands.

Mexico, of course, should also learn from its own troubled history with transitional justice. Despite Fox’s evident enthusiasm for documenting the PRI’s atrocities, his inability to insulate CISEN from conflicts of interest prevented the commission from compiling a factual narrative. López Obrador, in pitching truth commissions to the public, must reassure skeptics that he would prevent oppressors from protecting themselves once more. Considering the numerous documented links between government officials, business elites, and cartels, López Obrador should refrain from appointing politicians, “senior statesmen,” or business executives to a new truth commission. Rather, respected civil society leaders and even lay members of the general public affected by the drug war should lead the TRC to mitigate pro-government bias.

Mexico’s cultural and political realities inspire cautious optimism that a TRC could jumpstart the long journey towards peace. As a predominantly Catholic nation, norms of expressing contrition and granting forgiveness have long guided conflict resolution. When visiting rural Acetal in 1998, a village where the Red Mask paramilitary group massacred 45 churchgoers the year prior, Nobel literature laureate Antonio Gutiérrez recorded a story of community members praying for their attackers: “Forgive them, Lord, these men know not what they are doing.” More broadly, forgiveness was valued throughout society for its potential to “break the cycles of violence by transforming perpetrators and victims.”[63] 

Appeals for reconciliation extend into the current drug war discourse. Maria Herrera Magdalena—popularly known in Mexico as the “first lady of the disappeared” in memory of the four sons she lost to the conflict—has publicly offered forgiveness in exchange for information, remorse, and accountability. Civil society groups also urge rewriting state history, which for too long has downplayed the role of corrupt officials and slandered innocent victims as cartel members deserving of their fates. These demands for information leave the government room to negotiate the delicate balance in treating alleged perpetrators, satisfying the need to incentivize crucial testimony without enraging the public with overly generous or inequitable leniency. A well implemented TRC could fulfill this appetite to resolve grievances against organized crime and the government.[64]

Those longing for closure might find their champion in López Obrador, whose presidency represents a unique opening within Mexico’s politics to attempt a truth commission. A liberal reformer who campaigned on finding missing people and national reconciliation, López Obrador has endorsed amnesty for low-level offenders and truth commissions (albeit more limited than the model proposed here) to study mass-casualty events.[65] Although he maintains popularity, a recent fall in approval ratings attributed to a resurgence in violence and economic stagnation—captured prior to the country’s COVID-19 outbreak—could pressure him to redouble reconciliation efforts.[66] Limited to a single six-year term, López Obrador still has four years to pursue transitional justice without fear of electoral consequences.

Serious doubts linger about the president’s priorities, however. Many of López Obrador’s actions contradict his campaign promises, a trend which jeopardizes conflict resolution and the public’s faith in his government. He maintains traditional justice systems by investing heavily in militarized law enforcement, which contradicts his pledges to de-escalate the conflict.[67] He has failed to execute reforms approved by the legislature without proposing meaningful alternatives.[68] His administration labors to separate itself from corruption.[69] The COVID-19 pandemic, pressuring Mexico’s security and fiscal resources as well as its public health infrastructure, will likely force truth-telling even further down the administration’s agenda. Even if López Obrador refocuses on transitional justice, his commitment might not surmount the same spoiler dynamics which foiled his predecessor Fox. Subsequent research should apply political will models to diagnose this blueprint’s political feasibility with more precision, ideally featuring document analyses, stakeholder interviews, and expert consultations.[70] 

Even in the best case, a TRC alone will not suffice. Peace cannot hold in Mexico without holding the drug war’s major players accountable. Given Mexico’s compromised law enforcement and judicial systems, the country should complement a TRC with hybrid prosecutors to try sensitive criminal cases and break cycles of impunity.

Hybrid Prosecutors for High-Impact Trials

Just months after El Chapo’s sentencing in 2019, another cartel leader was sentenced in the same Brooklyn courthouse to 20 years in federal prison. This defendant was no typical drug war belligerent: Edgar Veytia served as the attorney general for the Mexican state of Nayarit. Veytia abused his office’s powers to conspire with the multinational H-2 cartel. Betraying his role as the state’s chief law enforcement officer, Veytia accepted bribes in return for redirecting police and prosecutors under his supervision to target rival cartels.[71] Conspiracies between law enforcement and criminal organizations continue to surface. In recent months, agents arrested a former commander of the Mexican Federal Police’s Sensitive Investigation Units and a former federal secretary of public security on trafficking and bribery charges.[72]

These indictments pose a dilemma in holding leaders in cartels and the government accountable for high-level offenses. With police, prosecutors, and cartels practically indistinguishable, López Obrador cannot rely on traditional law enforcement services. Outsourcing major cases to the United States may also prove unsustainable given recurring tensions between U.S. and Mexican security services, which may pressure López Obrador to distance relations with his northern neighbor. Indeed, the López Obrador administration has already reasserted sovereignty in combating organized crime.[73] To advance transitional justice beyond fact-finding, the president must pursue an alternative domestic approach to eradicate impunity by convicting cartel leaders and their protectors in government and industry.

Peacebuilders as prominent as UN Secretaries-General have long considered how to proceed when “domestic authorities do not want to or cannot prosecute human rights violators” and where “new threats to the rule of law emerge, such as organized crime and trafficking.”[74] The international community has accordingly developed several models of intergovernmental organizations to meet these challenges. Existing separately from nation-states, intergovernmental organizations maintain their own headquarters, personnel, budgets, rules, norms, and symbolism. They manifest in the judicial space most commonly as technical assistance programs, international criminal tribunals (which try perpetrators in foreign venues under international law), or mixed courts (which complement local justice systems with foreign lawyers and judges).[75]

Hybrid prosecutor offices supplement this landscape with an approach balancing external neutrality with internal credibility, and transactional cooperation with strategic capacity development. HPOs, staffed by foreign lawyers, operate as parallel criminal investigation and prosecution agencies to assist their traditional domestic counterparts with sensitive, complex cases.[76] Unique among the prevailing peacebuilding judicial interventions, HPOs rely fully on local legal systems. HPOs command a prosecutor’s investigatory tools but lack the independent ability to bring indictments in domestic courts or access external venues. Rather, HPOs cooperate with local prosecutors to try cases, a collaboration which allows foreign experts to introduce best practices to domestic law enforcement services.[77] These structural features offer two enticing benefits relative to other hybrid structures. First, by invoking domestic law and placing local prosecutors in the lead, HPOs respect sovereignty, which could make the intervention more palatable to the host government and more legitimate in the public’s eyes. Second, the HPOs’ supporting role incentivizes capacity-building—the more expertise they confer, the better chance they have of helping win cases—potentially leading to long-term security sector reform along with more immediate courtroom victories. 

Mexico could draw inspiration from Guatemala, which has struggled from a kindred history of protracted conflict, organized crime, lack of pluralism, and government corruption. Following Guatemala’s thirty-six-year civil war, a UN peacekeeping mission determined the country’s security and justice systems could not adequately investigate criminal organizations and illicit security networks. Accordingly, the UN proposed a temporary autonomous prosecution agency, the International Commission Against Illegal Security Groups and Clandestine Security Organizations (CICIACS), which would effectively sideline the Public Prosecutor’s Office and the National Civilian Police. International lawyers would try Guatemalan defendants in Guatemalan courts under Guatemalan law.[78]

Negotiations between the United Nations and the host government stalled over sovereignty concerns, but the failed CICIACS proposal laid groundwork for a compromise. The parties agreed to a hybrid structure which allowed external lawyers to serve as complementary prosecutors. International commissioners could lead independent investigations and recommend institutional reforms, supported by powers to subpoena, grant confidentiality, hire staff, file complaints against public servants, and publish findings. The government, however, reserved exclusive powers to arrest and indict.[79] Negotiators also modified CICIACS’ mandate to emphasize human rights issues and restructured the proposal into an independent commission rather than a UN body, financed primarily by international donors and subject to the host government’s assent every two years. Reflecting these amendments, a bilateral agreement between the UN Secretary-General and the host nation reestablished CICIACS as CICIG, the International Commission against Impunity in Guatemala. The revised proposal still encountered resistance, but a confluence of political events, including a presidential campaign overshadowed by the murder of four Salvadoran politicians by Guatemalan police officers, led to CICIG’s domestic ratification in 2008.[80]

Even as an advisory investigative partner, CICIG substantially improved Guatemala’s law enforcement capacity and helped domestic prosecutors win important convictions. CICIG experts modernized policing by instructing officials in forensics and legal surveillance and by instilling professional standards.[81] These methods facilitated the takedown of 60 criminal organizations and contributed to a five percent homicide rate decrease annually over the next decade.[82] CICIG reported more than 1,700 corrupt police officers and at least ten senior prosecutors to the Interior Ministry, resulting in their dismissal.[83] Most visibly, the commission penetrated high-level conspiracies. Following the apparent assassination of government critic Rodrigo Rosenberg Marzano, a CICIG investigation concluded that Marzano in fact staged his own death to undermine President Álvaro Colom.[84] This dramatic finding absolved the government and relieved the public, averting a civil crisis and inspiring faith in CICIG. Emboldened by its success, the commission fearlessly investigated government corruption. In 2015, CICIG uncovered President Otto Pérez Molina’s involvement in customs fraud, leading to his resignation and arrest. Thousands gathered in the capital’s square to celebrate the apparent end of the elite’s invincibility.[85]

Optimism faded in 2019, however, when President Jimmy Morales allowed CICIG’s mandate to expire, a move permitted by the country’s agreement with the UN. Following the United States’ withdrawal of support for CICIG, costing the commission its best financial and political lifeline, Morales’ path cleared to dismiss the hybrid prosecutors.[86] Morales and his supporters disparaged the hybrid prosecutors as biased, interventionist, and disrespectful of due process, claims which CICIG’s commissioner disputed as a “smear campaign” to shield the powerful against justice. Whomever one believes, CICIG’s success and popularity undoubtedly threatened the political establishment.

CICIG’s legacy as a victim of its own success highlights weaknesses from which Mexico can learn in embracing hybrid prosecutors. The commission’s structure exposed itself to fatal political risks. CICIG’s operations required productive relationships between its commissioners and Guatemala’s law enforcement leadership, a luck-of-the-draw proposition. The hybrid prosecutors enjoyed strong collaboration with Attorney General Claudia Paz y Paz, a human rights activist. [87] Relationships with other office holders such as Juan Luis Florido, who eventually resigned after obstructing the commission, were more fraught.[88] Furthermore, with CICIG’s mandate subject to biannual renewal, any administration could have easily revoked the commission’s license. Only continuous pressure applied through conditional aid or sanctions threats from CICIG’s donor nations could protect the commission from wary domestic powerbrokers. Without those incentives, a recalcitrant government faced few obstacles in removing independent investigators.

Mexico has never hosted hybrid prosecutors, though the country has experimented with other judicial interventions with poor results. In conjunction with his broader transitional justice strategy, Fox established a Special Prosecutor’s Office (SPO) in 2001 to fight corruption. As with the CISEN-affiliated TRC, PRI loyalists sabotaged the SPO, running it on their terms according to traditional power structures. Special prosecutors routinely found insufficient evidence against suspected corrupt senior officials, despite those subjects’ obvious enrichment beyond legitimate compensation while in office.[89] The SPO also failed to address human rights violations by rigging legal definitions to preclude prosecution against most perpetrators. Ultimately, the SPO served only to preserve the elite’s impunity, nominally improving the judicial system’s image without instilling any tangible accountability during a sensitive time in Mexico’s nascent democratization.[90] Working in a fundamentally different institution than the SPO, hybrid prosecutors would meet a blank slate, although they could face comparable threats from spoilers. 

Evidence on this innovative intervention is limited to Guatemala’s case, but that experience suggests hybrid prosecutors can develop state capacity, hold powerful actors accountable, and build the justice system’s credibility. Adopting CICIG’s principles while adapting its structure to reflect domestic needs and insulating hybrid prosecutors against politics could help Mexico sustain transitional justice reforms. In structuring its own HPO, Mexico should retain many productive features from CICIG’s design. The administration must consent to providing an HPO with autonomous staffing discretion, full investigatory powers, and authority to publish independent findings. In Guatemala, these parallel and public prosecutorial capabilities pressured the attorney general’s office into pursuing controversial yet substantiated cases, mitigating resistance from concerned elites. These powers would likewise insure HPOs against reluctant power brokers in Mexico. Although an HPO would still depend on domestic counterparts to punish impunity, this prescription at least provides hybrid prosecutors unilateral power to expose impunity. 

CICIG struggled, and ultimately stumbled, because of host government opposition abetted by inadequate international support. Adversarial relations between the commission and the attorney general’s office delayed and occasionally impeded justice. The agreement between Guatemala and the United Nations offered the host government too easy of an exit, with Guatemala’s termination option exercised in accordance with an arbitrary timeframe instead of substantial reform benchmarks. Rather than receiving support from a variety of donor nations with aligned interests, CICIG’s funding structure rendered it overly reliant on the United States’ generosity. More robust international agreements, such as those provided for under the Rome Statutes and Chapter VII of the UN Charter, would benefit the Mexican transitional justice process by detailing working obligations between the HPO and host government, securing more diversified funding, and establishing meaningful conditions for the intervention’s conclusion.[91]

A well-constructed HPO would offer Mexico much hope in eradicating impunity, but present political conditions internally and externally appear unfavorable. Inviting an HPO requires sharing sovereignty over criminal justice matters, a level of consent possible only with a president’s enthusiastic approval. President López Obrador’s platform included calls for a new independent federal prosecutor dedicated to corruption, implying awareness of the traditional institutions’ limitations.[92] But while he appointed the country’s first-ever independent attorney general, who in turn appointed a special anti-corruption prosecutor, critics complain his administration only reinforces political patronage.[93] Compounded by the president’s general disengagement from the international community, his administration’s apparent insincerity towards confronting impunity suggests hostility towards foreign intervention.[94] While the United Nations could force the issue by invoking Chapter VII or the Rome Statute, such proposals would likely fail if presented in the Security Council today if the United States’ withdrawal from CICIG serves as any indication of its priorities (although the new Biden administration may revive hopes for global engagement). And whereas societal yearning for truth-telling raises political momentum for a TRC, the Mexican public’s cynicism regarding the rule-of-law dims hope that popular energy could persuade López Obrador to welcome hybrid prosecutors.[95]

Nevertheless, transitional justice advocates within Mexico and throughout the international community must press the case for judicial intervention. Truth-telling can only accomplish so much; without removing perpetrators from power, post-conflict nations deny victims justice and leave barriers to reform intact. Peacebuilders must overcome these obstacles to fulfill a comprehensive transitional justice strategy which, by ending impunity and increasing public sector professionalism, strengthens state capacity, promotes faith in democratic institutions, and protects human and civil rights.

The Next Four Years

Transitional justice aims to break cycles of violence and retribution committed by state and non-state actors alike. Mexico’s longstanding drug conflict continues as a catastrophe exacerbated by corruption, impunity, and disastrous policy interventions. Often responding to international incentives, multiple administrations failed by themselves responding to force with force. Rather than weakening kingpins, state-sponsored violence too often targeted the vulnerable, festering more anti-government resentment.

Transitional justice resurfaces in North American political discourse just as Mexico confronts fresh scandal.[96] This article’s strategy—document the truth, apportion amnesty, and hold perpetrators accountable—offers a more compassionate and effective blueprint for healing the drug war’s many pernicious symptoms. An independent TRC—fully transparent, empowered with investigative authorities, and equipped to adjudicate amnesty petitions—would bring the country closure by validating people’s lived experiences of physical and structural violence. Although this commission would not deliver reparations or socioeconomic reform outright, by illuminating needs and offering policy recommendations it would establish a “platform for a transition” to a more equitable, just, and secure society.[97] Hybrid prosecutors would complement the TRC’s retrospective focus by removing spoilers from power. With structured international support and domestic cooperation, an HPO would provide Mexico the expertise and independence necessary to target architects of violence and expose officials who betray the public trust. Over time, as state capacity improves and judicial sanctions build law enforcement’s credibility, Mexico could transition to a society where accountability replaces impunity and responsiveness to social needs inspires previously unimaginable faith in democratic government.

Will the remaining four years of President López Obrador’s administration meet his campaign’s lofty rhetoric? His stated support for amnesty for low-level offenders, truth commissions to study mass casualty events, and independent federal prosecutors preserves the chance for a meaningful transitional justice agenda.[98] His attention to remedying economic inequity suggests a willingness to combat the root causes of violence, resentment, and clientelism. In a conflict marked by a greyscale of victims and perpetrators, this attitude indicates that transitional justice could extend into the socioeconomic reform necessary to prevent a relapse.[99] Unlike some of his predecessors who attempted transitional justice, López Obrador’s MORENA party leads majority coalitions in both houses of the Mexican Congress.[100] And yet, despite his popular and political support, his administration has largely disappointed peace advocates. He promised “hugs, not guns,” but so far he has only delivered air hugs of empty promises.

Power does not surrender easily. As the López Obrador presidency approaches its midpoint, corruption remains widespread throughout Mexico. The dissonance between the administration’s drug war platform and accomplishments reaffirms the challenge of implementing fair processes to address wrongdoings when many in power stand to lose. Overcoming fierce political headwinds to not only start but complete transitional justice will require concerted popular energy and international engagement. The public’s grassroots urgency for finding answers to their suffering may compel López Obrador to return to his platform, create a truth commission, and begin the healing process. As long as those questions lie unanswered, peacebuilding activists can energize the Mexican electorate to demand their government organize a TRC.

Disillusionment over government corruption will likely prevent more technocratic HPO proposals from attracting the same political momentum. New coalitions must therefore emerge from the international community to reinvigorate enthusiasm for helping oppressed populations prevail over cronyism. CICIG relied on traditional diplomacy. From 2007 to 2017, the United States led all donor nations in contributing $44.5 million to the hybrid prosecutors.[101] During the Obama administration, the Guatemalan government understood renewing CICIG as “practically a condition” for receiving general U.S. aid.[102] CICIG disappeared when those incentives vanished. Only diplomacy can sustain transitional justice from internal attack, and the international community must negotiate conditional assistance to earn consent for peacebuilding missions and monitor the process’ integrity.

López Obrador may prove incapable or unwilling to confront his government’s corrupt elements, but the next election could yield a worse alternative, especially given Mexico’s strongman lineage. Transitional justice advocates, both within and outside the country, must seize the rare opportunity over the next four years to implement and improve López Obrador’s peace agenda.