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By Chris Covert
A detached observer might get the idea that a 15 year old massacre, all of whose relevant legal and moral issues had been resolved long ago -- its resurrection the basis for a debate of the worthiness of long standing principles such as national sovereignty -- would be a good starting point to discuss those issues now.
But a detached observer might also get the impression that, were the impetus for resurrecting such a calamity to simply beat a political opposition over the head with it, such a resurrection could potentially bring out some less than savory actors.
When the September, 2010 lawsuit was filed against Mexican former president Ernesto Zedillo Ponce de Leon, it seemed to be news of a perfunctory nature; as if the lawsuit was expected inasmuch as the issues had long ago been resolved.
Consider the law firm filing the lawsuit.
Up until the September 2010 filing in Hartford, Connecticut, the two attorneys named as the lead attorneys, Roger Kobert and Marc Pugliese, were known as civil litigators in a law firm with a small, international clientele. Indeed, the most public civil litigation to date involving the two lawyers was an adverse verdict which cost their clients several millions of dollars including interest.
Usually when a high profile civil suit amounting to a public interest lawsuit is filed, it is filed by a firm with a known background in public interest law. Some element somewhere in the firm's background would lead any interested party to conclude that this is an experienced law firm seeking justice for victims somehow wronged.
And make no mistake: the 45 victims in Acteal were wronged on that the day on December 22nd, 1997. The day the attack took place nearly every individual shot dead or wounded was unarmed; many of the victims knew the attack was coming but chose, as their belief dictated, to pray they would be spared the coming massacre; many of the victims were children caught up in a social and political calamity, placed in the kill zone by their parents' own choosing. It is impossible to consider that the Mexican chief executive would somehow have had a hand in that attack; that the victims themselves, as passive as they were, supported a violent Marxist group that had attacked Mexican soldiers -- patriots -- in their drive for autonomy, and possibly provided some material support to the group.
This writer could find no nexus or connection whatsoever that would give a hint as to the impetus behind the suit. A request by email submitted last week to answer the question has never been answered Little was to be gained financially even by the lawyers because they had failed to provide an idea of the compensation being sought for the 45 victims at Acteal. Former President Zedillo at the time the lawsuit was filed was heading up an institution at Yale University. Comparatively speaking. Zedillo had moved from living in the opulence as a Mexican president to the relative penury of a private college. It is very unlikely that any one of the victims one day booked a flight to Miami to speak with the attorneys, nor is it likely in as backward a state as Chiapas, Mexico any of the victims or their progeny could afford to do so.
No even a hint of politics could be determined from the background of the attorneys.
It is almost as if one of the lawyers woke up some fine day and said, "Hey, you know what? Let's sue Zedillo! We'll make a bundle!" Given the past 20 months of Righthaven, far more absurd legal activities have profitably taken place in US federal courts.
What politics that could be considered resided in materials filed by Zedillo's attorneys last week. Among the exhibits was a program from a 2002 awards ceremony by the Franklin Delano Roosvelt Institute, dubbed the Franklin Delano Roosevelt Four Freedoms Awards. In 2002 the awards ceremony held in Middleburg Abbey in Zeeland province in the Netherlands was held to honor five recipients of the awards. Among those recipients was Zedillo, who received the Freedom from Fear Award that year.
The politics involved are an exemplar of the politics of the American left. In Hartford, Connecticut resides a former head of state working as a professor, recipients of a human rights ward giving by individuals with radical leftist connections.
One of those associated with the Franklin Delano Roosevelt Center was none other than William vanden Heuvel, its co-chair, former US diplomat and icon of the old left. In 2002, William vanden Heuvel gave a presentation for the awards ceremony. His daughter is Kartine vanden Heuvel, editor and partial owner of The Nation, of the the oldest leftist publications in the world.
Previous recipients have included Amnesty International, Olof Palme and Armand Hammer, all individuals who maintain the good relations of the old Left.
Ms. vanden Heuvel is a representative of the new Left, a self described progressive, the current buzzword for socialist. The self identification is appropriate since it has long been an established pattern of leftists to call for socialistic reforms without calling such reform anything other than progressive. Ms. vanden Heuvel has been antiwar in the past and anti conservative, and her publication has been showing its view for a long time.
Except for references to Acteal. A quick search of the archives of The Nation shows no references to Acteal or to the EZLN. The omission is odd because in prior editions The Nation favorably presented material for violent Marxist groups, such as the Sandinistas and Castro's Cuba.
But among the oddest individuals to have emerged in the controversy surrounding the lawsuit has been Spanish jurist Baltasar Garzón Real. Garzón Real has in the recent past immersed himself into several controversies, including his attempt to charge the Bush Six, Alberto Gonzales, John Yoo, Douglas Feith, William Haynes II, Jay Bybee and David Addington for their alleged roles in offering justifications to torture.
The Spanish legal system must have scrambled to keep the cases away from Garzón Real's courtroom, eventually assigning it to another judge who dropped the case.
This time Garzón Real said to the press last week, absurdly, that immunity "did not apply" to Zedillo, all without describing how immunity did not apply. His remarks came in the wake of news that an application had been made from the Mexican Foreign Ministry to the US State Department requesting Zedillo receive immunity as a former chief executive.
What made Garzón Real's remarks charmingly irrelevant was the fact that Garzón Real never met a camera he could put his mug in front of or a microphone before which he had nothing to say.
Perhaps the clearest remarks came from Mexican leftist politician Andres Manuel Lopoez Obrador. In remarks published last Saturday, Lopez Obrador hinted that Carlos Salinas de Gortari, Zedillo's predesssor, may share in the blame for the events leading up to the massacre.
Indeed Salinas' indifference to the growing threat of the EZLN was a contributing factor; in Mexico such a concept could be considered a statement of fact.
However, his other remarks left no doubt where he stood on the matter and what he would do were he elected to president of Mexico.
According to Proceso, Lopez Obrador made references for his supporters to eschew "revenge"and to "seek justice." Lopez Obrador is likely referring to other members of Mexico's leftist mainstream, including Jesus Zambrano (PRD), who suffered horribly under a succession of Mexican presidents. Lopez Obrador has in the past made no secret of his disdain for the Mexican Army and other arms of Mexican security. Those forces arrayed against Grijalva and other political allies could conceivably suffer the worst under a Lopez Orbador administration, as he has stated on more than one occasion his intention to end the drug war by simply not prosecuting it any longer.
Lopez Obrador is currently in the midst of the PRD primary season attempting to make a second successive run to be president of the republic, a goal in which he came up short by less than one percent of the popular vote last time.
The Petition
At the heart of Zedillo's defense against the lawsuit is the principle of sovereign immunity. Simply stated, sovereign immunity is immunity government officials enjoy when they leave office for crimes they may have committed during their term in in office.
The crux of the plaintiff's argument is that Zedillo enjoys no immunity if those acts were committed outside the color of their authority. The concept is that if a government official commits an act that was illegal at the time he committed it as head of state, sovereign immunity would no longer apply, since those acts were outside the scope and color of his authority.
The intention of the plaintiffs then seems pretty clear. The plaintiffs are asking the court to allow them to proceed on the matter even though nothing Zedillo had done during his term in office was considered illegal. The plaintiffs want a chance to prove what Zedillo did was illegal even though no charges had been filed since the alleged crime. The plaintiffs are asking for court permission to grant that a crime has taken place outside Zedillo's authority, even though no charge civil or otherwise has been forwarded, and for relief so their part of the charges may be proved he did in fact act outside his authority as president.
The issue being argued at the moment is foreign official immunity from prosecution for acts committed while in office. What lies at the basis of the lawsuit is an attempt by the plaintiffs to suspend the concept of sovereignty inasmuch as Zedillo's attorney's have argued he was not responsible for the Acteal massacre in 1997.
If Zedillo committed any act, gave any order, was aware of any act or order of any significance which led to the massacre, the plaintiffs claim, it would represent an act outside Zedillo's authority. But any one of those putative acts must be considered in context of the Chiapas Conflict in 1994.
The EZLN [Ejercito Zapista Liberacion Nacional] attacked in January 1994, the last year of the term of President Carlos Salinas de Gortari. Despite warnings by local and state government officials that the national government needed to do something about the increased activity of Guatemalan rebel's use of Mexico as a haven against Guatemalan Army counterinsurgency operations since 1992, Salinas seem to have been caught with his pants down. It was probably an unlikely combination of intervention by the Liberation Theology wing of the Mexican Catholic church and EZLN logistics that ended the hottest portion of the war.
It had to have been an embarrassing fiasco for Mexico's national government, and one for which the Mexican Army developed a solution.
The Plana Campana de Chiapas 94, the document the plaintiffs plan to use against Zedillo was developed by Carlos Salinas' government and implemented by the Mexican Army months before Zedillo actually took office. Part of the plan included using Mexican former and current military to establish patrols in the area to gather intelligence and act as a police presence in Chiapas. Implicit in that was for those elements to be armed with firearms. That part of the plan is often described as pro se evidence of the Mexican government's involvement in the 1997 Acteal massacre. The charge that the Mexican Army was arming civilians is largely true despite the fact that committed Marxist rebels in the area and many of their supporters also had weapons at their disposal, and used them repeatedly against political opponents throughout the region for at least two years before the massacre.
Between 1994, when the Chiapas war started and the end of 1997, not only was the EZLN actively pursuing its goals of taking over some municipalities in Chiapas, a violation of the Peace Accord, but Mexico saw no less than two new violent and armed Marxist insurgencies formed, which attacked Mexican government facilities including army bases in Guerrero and Oaxaca. Although the EZLN did not vocally support the EPR and the EPI, those two groups expressed support for the EZLN. Both groups performed the same information operations as EZLN, without respite in Chiapas, Oaxaca and Guerrero state during that time, which included representatives taking tours of various villages and ejidos in the mountains where indigent Indian groups were the most susceptible to Marxist propaganda.
Universally reviled by the Mexican left when it was released was the Blanco Libro Sobre Acteal or White Paper on Acteal released by the national attorney general,which described some of the events which preceded the massacre. Prominently displayed were numerous acts of vandalism, murder and intimidation of Mexican citizens in the area by individuals and groups sympathetic to the EZLN, and responses by Mexican citizens towards EZLN supporters. The main thrust of the document was to demonstrate that both sides had contributed to the hostile conditions which led to the massacre.
The document has been dismissed as a whitewash, yet even presumed whitewashes contain some elements of truth. In this "whitewash" the Mexican government sought to flood any debate about the Acteal massacre with a description of the near total breakdown of authority in the state, fostered by ELZN in illegal attempts take control of municipalities without state legislature approval, and unchecked citizen involvement in the situation by both sides which led to the massacre.
The plaintiffs used the document to point out that Zedillo had no intention of negotiating with the EZLN, despite the agreement to end the war. The contention is absurd in light of of the historical record and the government's intention to maintain its sovereignty in the area. It is an amazing thing both sides agreed to the accord in 1994 since at the time the US was ruled by the most liberal government in generations and was likely to side with the rebels. It is hard to consider how showing a US federal court that a natural act of a government to exert its sovereignty could prove that such an act was outside the scope of a chief executive's authority.
More so, it is astonishing that the plaintiff's attorneys would expect the US Court system to adjudicate a 150 year old record of stare decis, as well as common law which goes back even farther than that.
Sovereignty is the basis and job description of the top political executive in every nation on the planet. You have to wonder why Zedillo, outside the normal illogical arguments leftists may make to the contrary, would be denied this basic requirement of his office, short of a weakly argued lawsuit, and possibly politics.
The lawsuit also describes the measures taken by the Mexican Army to counter EZLN and their supporters in Chiapas, including arming and training of "villagers" described as "Anti-EZLN villagers" with military grade assault rifles, very similar to the military assault weapons carried by EZLN guerrillas and their supporters, a fact the petition does not address.
One of the differences between the Acteal White Paper and the petition concerns rifles. The petition claims the the Mexican Army armed and trained civilians, a fact which is borne out by the White Paper. The petition charges that the Mexican Army directed the killers during the attack, which is arguable. However, the White Paper said that many of the participants did not have rifles; that the weapons were given to them by local and state police forces along with police uniforms, who then allowed them to carry out the attack. The White Paper said some of the weapons used were AK-47 rifles, a weapon which would not be available to government supporters and the weapon of choice of revolutionary movements since the 1960s; rather, the venerable US-made M16 would have been handed out. The issue of the rifle type used to kill Los Abesas, critical in the matter is simply not addressed in the petition.
The petition does not address in any way the nexus between the apparent ad hoc and impromptu raid and the office of the president, save for his role as commander in chief of Mexico's armed forces. It appeared that raid was conducted by Anti-EZLN villagers independent of the Mexican Army, save for the Plana Campana Chiapas and the apparent presence of large numbers of rifles. The petition claims units of the Mexican Army were in the area at the time of the massacre, but also claims army units heard shots but did not respond. That claim is contrary to the petition's contention that the Mexican Army directed the attack.
The White Paper claims that human rights groups and observers, known to be sympathetic to the EZLN, were not in the area at the time of the attack, which is confirmed in the petition when it states that Mexican Army units in the area heard shots but failed to enter the area until almost 14 hours after the shootings had ended.
The petition also claimed that Zedillo was taping a message to the nation when news of the Acteal shootings reached him. According to the petition Zedillo briefly stopped taping before resuming the recording of his message. If Zedillo was directly involved in an operation such as killing members of an obscure religious sect seen as a potential threat, he could have conceivably been at a command center waiting news, instead of conducting his normal duties.
In the response Zedillo's attorneys claim Zedillo was stunned by the news, which is borne out by most accounts.
In discussing charges of a coverup, the petition blows by the long time frame between investigation -- which was rapid -- and the eventual conviction of the alleged perpetrators of the crime almost 10 years later. For example, within 48 hours of the end of the shootings, representatives of Zedillo's attorney general's office, the Procuradoria General de la Republica (PGR) were at the scene gathering evidence and testimony. For individuals accused of planning and executing a massacre, the investigation went forward with due dispatch.
The petition also claims a number of irregularities surfaced when the convictions of the 33 individuals who were convicted of the crime were tossed out.
In Mexican jurisprudence, a year is a long time. When a prosecutor charges an individual, they go to jail and there they will stay until they can prove their innocence. The conviction for the 33 individuals for their role in the crime took place in 2007, almost 10 years after the act and, the petition claims, done under a completely different political party, the Partido Accion Nacional (PAN).
The petition claimed a number of irregularities in gathering evidence and references a number of juicio de amparo, or procedural appeal decisions in the matter which showed irregularities may have occurred. The petition fails to note for the court that in Mexican jurisprudence juicio de amparo suits are an extremely common counter to prosecutors and are a routine matter. Those lawsuits do not per se demonstrate a pattern of abuse.
The Politics
The real basis of the lawsuit is Mexican and American politics. Mexican presidential elections are coming by July and it is entirely possible that the Partido Revolucionario Institucional, Zedillo's party, will return to the Mexican White House known as Los Pinos.
The motivation of the two attorneys in prosecuting this lawsuit will probably remain shrouded and are almost completely irrelevant to the massacre itself. If the plaintiffs win their contention that Zedillo does not enjoy immunity as a former chief executive, it will throw several decades of law into a new standard where sovereignty doesn't matter. Indeed the goal of the lawsuit may be just that: wrecking US concepts of sovereign immunity. The international legal community would love to get their hands on George W, Bush and his liberation of Iraq and Afghanistan, and an adverse decision could engender that environment.
But even more relevant could be the ongoing drive by the Mexican mainstream and independent leftists to get access to decades of US National Security material on the Dirty War and in the Chiapas War.
A fair amount of those materials were already released under the liberal Clinton administration.
Revelations of US involvement, and any Mexican politicians involved could invoke an orgy of "justice" as Lopez Obrador has termed it.