TONATIERRA: Open Letter to the Tom Lantos Human Rights Commission, House Committee on Foreign Affairs

TONATIERRA

Community Development Institute

PO Box 24009

Phoenix, AZ 85074

www.tonatierra.org

tonal@tonatierra.org
 

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May 26, 2020

Tom Lantos Human Rights Commission

House Committee on Foreign Affairs

5100 O'Neill House Office Building

200 C Street SW

Washington, D.C. 20515

Good greetings.

Today marks five years and eight months since the forced disappearance of the 43 Ayotzinapa students of the normal school Raul Isidro Burgos in Iguala, Guerrero, Mexico, on the evening of September 26, 2014.  Six deaths, which included three other students, also occurred that evening at the hands of the agents of the Mexican state or their proxies among the local narco cartels.  On the night of their disappearance, the students were on board five commercial buses with final destination in the US cities of Atlanta and Chicago.  Unknown to the students, a shipment of heroin worth an estimated 2 million dollars was hidden on two of the buses.  The students themselves were on route to attend the anniversary of the Massacre of Tlatelolco ‘68, when the Mexican army opened fire killing hundreds of unarmed protesting students in Tlatelolco Plaza in Mexico City, where the Olympics of 1968 were being hosted.

The investigation into the case of Forced Disappearance of the 43 Ayotzinapa students remains without resolution, and in the pall of the Covid-19 pandemic, parents of the 43 missing students have been pushed to the margins of the agenda of the new government in Mexico under president Andrés Manuel Lopez Obrador (AMLO).  Today, in spite of the social constraints in place due to the Covid-19 quarantine, the parents of the Ayotzinapa students are manifesting a global call to accountability of the AMLO government, in consequence to commitments he has made to them but not fulfilled.

Today during a global action organized through social networks to commemorate 68 months since students' disappearance, the parents' legal representative, Vidulfo Rosales, called on Mexican federal authorities to inform the relatives of the victims regarding what concrete advances have been made by the AMLO administration in the investigation.  A critical issue of accountability that still has not being reported on publicly after more than five years is the details of the scope of involvement of the Battalion 27 Headquarters of the Mexican Army in Iguala, Guerrero, in the events of September 26, 2014.
 

Instead, the coverup of the criminal involvement of agents of the state, from the army to the judiciary, continues in the AMLO administration. The campaign to falsify witnesses, evidence, and subvert a legitimate investigation is prolonged even though on March 18, 2020, a Mexican judge issued an arrest warrant for the former head of investigations for the national Attorney General's Office, Tomás Zerón, for alleged violations in the original federal investigation of the case of the 43 Ayotzinapa students.

Tomás Zerón and five other former officials face charges including torture, forced disappearance, and judicial misconduct. Three have been arrested and three, including Zerón, are still at large. Zerón oversaw the criminal investigation agency of the Attorney General's Office and also its forensic work in the Ayotzinapa case. The students' bodies have never been found, in spite of the fact that a GPS signal from one of the student’s cell phones was tracked to the Battalion 27 headquarters in Iguala in the early morning hours of September 27th.

Zerón's team said in October 2014 that they had found a bone fragment of one of the students in the river by the dump at the town of Cocula. However, a team of independent experts determined the Zerón account was fabricated and discovered that Zerón had visited the location a day earlier with an alleged gang member, without notifying the man's lawyer or filing a report on his visit.  Many of the suspects arrested in the case were later released, and many claimed they had been tortured by police or the military.

Federal officials who were not authorized to be quoted by name have stated that a warrant has been issued for Zerón's arrest and that Interpol had been notified to help locate him in case he was outside of Mexico. One of the officials said there were indications that Zerón may have left for Canada in late 2019.

Yet Zerón is not under arrest today. Today, speaking for the parents of the 43 Ayotzinapa students, attorney Vidulfo Rosales called for the Mexican government to explain why arrest warrants have not been executed against the government officials allegedly involved in fabricating the so-called government’s "historical truth" of the Cocula dump story and promoting the criminal coverup from the highest levels of government.

Explanations are called for, certainly by the Mexican government, but if Tomás Zerón is in Canada, there must also be an accounting for the complicity of Canadian authorities in sheltering such an accused criminal and now participating in the international coverup of the Forced Disappearance of the 43 Ayotzinapa students.  
 

Explanations are also to be had by the US government, far beyond the particulars of the Ayotzinapa case. The military apparatus of the Mexican state would not have the capacity to engage in the surveillance, assault, and forced disappearance of the 43 Ayotzinapa students if the US government wasn’t providing funding, logistical support, and political cover under the Plan Merida Initiative - Mexico.  Masked as an international “War on Drugs”, the Plan Merida-Mexico serves as the tool of the narco-state of Mexico not to eliminate the drug cartels in Mexico, but instead to establish hegemony, control systems, and the backing of corrupt government officials in order to manage the market of supply and transportation routes to feed the demand for drugs north of the US-Mexico border.

An estimated 120,000 deaths in Mexico attributed to the violence of the “War on Drugs” have been reported since the Plan Merida Initiative began under President Calderon in 2009.

Beyond the emblematic case of Ayotzinapa 43, in January of 2020 the government of President Andrés Manuel López Obrador announced that 61,000 people are officially listed as “disappeared” in Mexico, individuals who have vanished in more than a decade of extreme violence by and among organized-crime groups. The previous official estimate, released in April 2018, put the number at 40,000.

USMCA-TMEC-CUSMA 2020: Present Context 

At this juncture, it becomes necessary to recall and reaffirm the provisions of the Leahy Laws or Leahy Amendments, which are U.S. Human Rights laws that prohibit the U.S. Department of State and Department of Defense from providing military assistance to foreign security force units that violate human rights with impunity. Named after its principal sponsor, Senator Patrick Leahy who first introduced the legislation in 1997, the provisions of the Leahy Laws are now codified in the Foreign Assistance Act since 2008.

Section 620M of the Foreign Assistance Act of 1961 (Leahy Amendment):
(a) IN GENERAL. – No assistance shall be furnished under this Act or the Arms Export Control Act to any unit of the security forces of a foreign country if the Secretary of State has credible information that such unit has committed a gross violation of human rights.

The gross systemic violation of Human Rights under the successive regimes of political corruption in Mexico is not a matter of conjecture or editorializing. It is a finding of fact of the U.S. State Department who in its official 2018 Country Report on Human Rights Practices in Mexico referenced the findings of a three-judge panel of a federal appeals court in Tamaulipas that ruled that authorities had failed to investigate indications of military and federal police involvement in the disappearance of the 43 students from the teacher-training college of Ayotzinapa in Iguala, Guerrero, in 2014.

But beyond the decisions of the courts of Mexico regarding the gross systemic violation of Human Rights in the context of the case of Ayotzinapa 2014-2020, now there is also a ruling from within the US legal system that must be taken into account by the US Congress, by the Tom Lantos Human Rights Commission, by the constituents of each of the 50 states of the USA, and also by implication - the government authorities in Canada.

In Arizona, on January 7, 2020, the Arizona Immigration Court Judge Molly S. Frazer, in a ruling regarding the asylum case involving a Mexican national who was at the scene of the disappearance of the 43 Ayotzinapa students on September 26, 2014, issued a ruling that sets historical antecedent within an American court regarding the pervasive impunity that shrouds the violation of human rights in Mexico.  The individual seeking asylum in the U.S., Ulises Bernabé García, was serving as a temporary Justice of the Peace at the base of the Municipal Police of Iguala and was the first direct witness who saw the Army in the streets of Iguala in the hours that the attack and disappearance of the students occurred.  In his official testimony, he categorically denied the account that the 43 students had been taken to the base of the municipal police as claimed by the version of the so-called “historical truth” disseminated by the Mexican Attorney General’s Office (PGR) within the Peña Nieto government.

“The Court agrees with the conclusion of the expert witness, Mrs. Hernández, that the official historical truth, created by the Mexican government has been refuted, that numerous witnesses were tortured by the Mexican government and that pieces of evidence were also manufactured or sown at the scene of the crime by the Mexican government in order to support the false ‘historical truth’ ”, affirms the ruling of the Arizona Court.

"(The Court) Challenges the belief that a municipal police department would have the political influence and the resources to plan such an intricate cover-up and disappearance of the 43 Mexican students. It is much more possible that the federal government of Mexico and the federal police have been responsible for this horrible incident”, states the judgment of the court.

Judge Molly S. Frazer

January 7, 2020
 

In our letter to the USMCA Working Group of the US House of Representatives on September 13th, 2019, we informed the Working Group members and House Speaker Pelosi that upon review of the public record of debate concerning the Human Rights of Indigenous Peoples in the context of the proposed US-Mexico-Canada Agreement (USMCA), the systemic disregard for the human rights of Indigenous Peoples is blatantly discriminatory, unacceptable, and must be addressed before the agreement is put to vote before the House of Representatives.

Specifically, we called for a full public hearing before the appropriate committees and/or Working Group formations of the US Congress for the purpose of informing the US congressional representatives on the right of Indigenous Peoples to Free, Prior, and Informed Consent (FPIC) as stipulated in the UN Declaration on the Rights of Indigenous Peoples (2007) regarding projects which impact their collective rights.

On January 1, 2020, we reiterated this concern to the Tom Lantos Human Rights Commission of the House Committee on Foreign Affairs, urging the Commission to conduct a full public hearing on this issue before the vote of approval on the USMCA in the US Congress.

Neither the USMCA Working Group nor the Tom Lantos Human Rights Commission ever responded to our petition.

Disregarding these fundamental Human Rights concerns, both the US Congress and subsequently the Canadian Parliament adopted the USMCA-TMEC-CUSMA as had been negotiated with the government of Mexico, without any substantive input from the Indigenous Peoples of the region.  In Mexico, the Spanish text of the agreement was never even published until our organization TONATIERRA received a copy from the Mexican Consulate in Phoenix, Arizona, on December 5, 2018.

The USMCA has been promoted as a necessary "update" of the North American Free Trade Agreement (NAFTA). In distinction from NAFTA which was adopted in 1994 thirteen years before adoption of the UN Declaration on the Rights of Indigenous Peoples - UNDRIP (2007), the signatories of USMCA must comply with the minimum standards of FPIC or the corporate consortia investing in any development project in violation of FPIC will immediately become financially liable and exposed to the risk of legal challenges and financial penalties that must be presented before their constituencies (states) and shareholders (corporations).

This principle is now well established, having been the subject of the Soft Woods Lumber Dispute (1982) between the US and Canada which acknowledged the proprietary rights of Indigenous Peoples over territories and resources in the international trade tribunals. Recognizing this fact, the World Bank has restructured its procedures, protocols, and practices regarding Indigenous Peoples and the right of Free, Prior, and Informed Consent under the Environmental and Social Standard 7 to shield its interests.

Indeed, the perpetuation of an international systemic pattern of human rights violations committed by the states against the Human Rights of Indigenous Peoples is the fundamental purpose why the UNDRIP was developed as a necessary instrument of contemporary international human rights law after decades of negotiations among all parties.

Yet in the USMCA trade zone, the pattern of systemic human rights violations persists and is granted impunity, protection, and corporate profitability by the trade policies and agreements among the states that take as a “given” the surrender of the territorial rights of the Original Nations of Indigenous Peoples of the continent. It is a narrative of 526 years of expropriation, looting, and dispossession: the Master’s Narrative of cultural supremacy and colonial dominion.
 

In the case of the Indigenous Peoples of Mexico, the gross systemic violation of Human Rights under the successive regimes of political corruption over the past 100 years has its roots in the concept of “Original Property of the State” which was invoked in the Constitution of 1917 after the Mexican Revolution.  The concept of Original Property of the State is the Civil Law concomitant to the “Marshall Trilogy” of US Supreme Court decisions under Common Law that are framed in the legaloid tenets of the Johnson v. M’Intosh (1823) case which affirmed the basis of US territorial jurisdiction on the continent as the Doctrine of Discovery of Christendom (October 12, 1492).

The approval of USMCA without recognition, respect, and effective mechanisms for the equal protection of the internationally recognized Human Rights of Indigenous Peoples in the trade zone encompassing the three countries, specifically the right of Free, Prior, and Informed Consent (FPIC) must be addressed and rectified.  The Indigenous Peoples have never consented to have our inherent Human Rights, Territorial Rights, and Right of Self Determination subverted under the regional commercial framework of the USMCA. Consultation is not consent. Simulations of consultations are a travesty and a fraud.

To what depth are the three USMCA governments willing to descend to mask their involvement and complicity in perpetuating the 526-year old pogrom of corporate colonization and genocide?  More to the point, to what standard will the respective constituencies of the states hold their representatives in government accountable in terms of Civil Rights, Human Rights, Indigenous Rights, and most importantly the responsibility to protect the Territorial Integrity of Mother Earth?

 

In the case of Ayotzinapa, the protection and asylum being given to Tomás Zerón in Canada is telling but not unique. The scale of death and forced disappearances in Mexico that goes back five centuries is not only that of individual loved ones, family members, and friends. We have lost entire nations, communities, traditions, languages, and vital human histories that number in the tens of millions. The creation of the rural schools of teacher preparation in Mexico such as Ayotzinapa, which served the marginalized Indigenous Pueblos of the countryside with a curriculum that integrated indigenous languages and critical thinking, was also a product of the Mexican Revolution of 1910-1920.

On May 20, 2020 the Assembly of Defenders of the Maya Müuch Xîinbal Territory in the Yucatan issued a proclamation in denunciation of the “Maya Train” project being promoted by the government of president Andrés Manuel López Obrador in the southeast region of Mexico. Replicating the model of corporate collusion that the Canadian government subscribed to by purchasing the Trans Mountain Pipeline from Kinder Morgan for $4.5 billion in 2018, AMLO has positioned the Mexican state as the chief promoter of the “Maya Train” project.

And just like D.Trump did upon first taking office as president of the US, when he fast tracked approval for the Dakota Access Pipeline, AMLO is pushing the “Maya Train” without any environmental impact studies and without genuine consultations with the affected indigenous peoples, as stipulated by International Labor Organization (ILO) Convention 169.  Indigenous organizations have consistently and unequivocally been opposed to the project, beginning with the name the government has given it, questioning: “Who allowed them to appropriate the Mayan identity?”

In fact, in April of 2019, AMLO made public announcement that President D.Trump was willing to have the US government invest in the “Maya Train” project.  The international consortia of corporate interests that are investing in the scheme includes the U.S.-based firm BlackRock Investment Fund, and Operadora Carso, controlled by one of the wealthiest men in the world, Carlos Slim. Portugal’s Mota-Engil, China Communications Construction Company, Grupo Cosh, and Eyasa y Gavil Ingenieria have also won initial bids for the mega-development industrial development project.  What involvement any Canadian corporations may have in the project has yet to be identified.

Which brings us back to the message of our original communique of January 1, 2020, to the Tom Lantos Human Rights Commission. Also in January of 2020, in Campeche, Mexico, a federal district court issued an Order of Protection against the Maya Train project, due to the fraud and abuse of the government officials in the consultation process, simulating a public consultation when the contracts for the project had already been approved.
 

This is fraud. There can be no legitimate implementation of USMCA-TMEC-CUSMA without recognition, respect, and effective mechanisms for the equal protection of the internationally recognized Human Rights of Indigenous Peoples in the trade zone encompassing the three countries, specifically the right of Free, Prior, and Informed Consent (FPIC).  Consultation is not consent.

We reiterate our call to the Tom Lantos Human Rights Commission to conduct a full public hearing on the implications of the blatant systemic violation of Human Rights in the international USMCA trade zone, and specifically to address the violation of the inherent Human Rights of Indigenous Peoples, equal to all other peoples, cited in USMCA as follows:

32-1

CHAPTER 32 EXCEPTIONS AND GENERAL PROVISIONS

Section A – Exceptions

Article 32.5:  Indigenous Peoples Rights 

Final Clarifications:

1.)  The designation of Indigenous Peoples in the USMCA is definitive, in terms of the recognition of Indigenous Peoples as “peoples”.  In the context of the 2007 UN Declaration on the Rights of Indigenous Peoples, which was not yet in place in 1994 during the original NAFTA agreement, the recognition of Indigenous Peoples in an international commercial agreement necessarily is accompanied and contextualized by the recognition of the Rights of Indigenous Peoples as articulated and affirmed in the principles and articles of the UN Declaration on the Rights of Indigenous Peoples.

2)  The principle of non-discrimination is a preemptive norm in international law.  Therefore, the recognition of Indigenous Peoples as “peoples’ in USMCA Article 32.5 Indigenous Peoples Rights must be taken as an affirmation and commitment to uphold, recognize, respect, and institute guarantees of protection for the collective rights of Indigenous Peoples, equal to all other peoples, without illegal or arbitrary discrimination, including effective consequences in the form of legal remedies to address the violation of these rights. Colonization must not be disguised as development.

3) The official text in Spanish (or any indigenous language) of the USMCA agreement was never published in Mexico or anywhere else until the date of December 5, 2018 when our organization TONATIERRA requested an official copy at the offices of the Mexican consulate in Phoenix, Arizona. Without having the text of the USMCA agreement in advance, there is no legitimate or rational narrative that can explain how the Indigenous Peoples of Mexico have been consulted at least with respect to the protection of their particular and collective rights under the USMCA, much less taken into account with the opportunity to approve or DENY CONSENT.

TONATIERRA

Maya Visión – Centro Cultural Techantit

******* 

Free Prior and Informed Consent

FPIC

All Peoples have the right to self-determination. It is a fundamental principle in international law, embodied in the Charter of the United Nations and the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights. The standard, Free, Prior and Informed Consent (FPIC), as well as Indigenous Peoples’ rights to lands, territories and natural resources are embedded within the universal right to self-determination. 

The normative framework for FPIC consists of a series of international legal instruments including the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP), the International Labour Organization Convention 169 (ILO 169), and the Convention on Diversity (CBD), among many others.

FPIC is a specific right that pertains to Indigenous Peoples and is recognized in the UNDRIP. It allows them to give or withhold consent to a project that may affect them or their territories. Once they have given their consent, they can withdraw it at any stage. Furthermore, FPIC enables them to negotiate the conditions under which the project will be designed, implemented, monitored and evaluated. 

Consultation is not consent.