The business people, bankers, front men and experts in foreign exchange operations who take part in the economic structures of criminal networks do not usually appear in criminal investigations or convictions. Something similar happens in the political structures with those public officials and political leaders who establish agreements with agents of criminal networks. State resources, public security and decisions regarding public administration are used to award public contracts in favor of seemingly legitimate businesses, for purposes of trafficking and undertaking other illegal activities and in order to protect drug kingpins and neutralize political rivals.In only rare cases do the communications media and public opinion draw attention to the complexity of criminal networks:
•Mass murders of undocumented migrants;
•Hundreds of thousands of tons of ferrous material trafficked by The Knights Templar in the ports of Michoacán;
•Massive institutional infiltration evidenced by the Michoacanazo [arrest of mayors in Michoacán during Calderón administration; all were releassed for lack of evidence]; and
•What happened recently in Iguala and Tlatlaya.These high-profile cases put the spotlight on the institutional—economic and political—structures of organized crime. But this attention does not translate into new jurisprudence, innovative mechanisms for investigating macro-criminality, or penalties against criminal actors that operate from positions of "legality".
What's worse, it denies the existence of systemic criminal networks entrenched in the deepest levels of the State.
What may seem to be a theoretical question also has serious practical implications. Referring to Ayotzinapa, for example, it will be very difficult to judge and punish José Luis Abarca, former mayor of Iguala, for crimes of forced disappearance. Nor will his role in the criminal structure and violence operating in Guerrero be understood. Conversely, if there were legal tools to investigate and severely punish public officials who support or collaborate in actions of forced disappearance, torture, or forced displacement, it would be more plausible to punish this former mayor and, above all, all those above him who have favored similar criminal actions.
Without proper and extensive case law on crimes, such as the participation of public officials in acts of forced disappearance, torture and forced displacement, and without adequate methods for understanding the structures of criminal networks as complex systems, investigations of what happened in Iguala will be conducted as traditional homicides.As a result, only in the rare event that the PGR might declare and certify the murder of some of the 43 disappeared students, lengthy legal proceedings will be initiated that can easily end in impunity based on prescriptions [statute of limitations expires] or procedural failures [of due process].
To avoid this impunity, through comprehensive and effective jurisprudence, joint, committed work would be needed by the Executive, Legislative and Judicial branches of government—something that rarely happens. Thus, President Peña Nieto's recent legislative proposals may be necessary, but totally inadequate: they can easily die in the eternal Congressional debates and, even if approved, they would encounter implementation obstacles in the Judicial Branch due to a lack of technical and operational capacity.Meanwhile, victims will continue to disappear, their cases in procedural limbo, and the criminal networks in Guerrero and other states will continue to operate successfully because the authorities do not understand their true complexity. Public security agencies think they understand a criminal structure when they present a flowchart of kingpins and gunmen, meanwhile they ignore the massive participation of public officials and politicians.
What Should Be UnderstoodIn 2013, as part of a process of transitional justice in Colombia, the structure of a criminal network headed by a narco-paramilitary commander of the Self-Defense Forces of Colombia (AUC) was reconstructed and analyzed. About 2,300 victims were identified involving crimes of forced displacement, forced disappearance, murder and gender violence that consisted mainly of rape and forced sterilizations. Approximately 330 perpetrators linked to the criminal structure were also identified.
The extremely high number of victims and victimizers describes the action of a complex network with structures capable of practicing violence and processing political, social and financial resources between legal and illegal, public and private sectors in Colombia; which is to say that this complex network was organized thanks to the immediate and intermediate—"shadow"—participation of agents with institutional decision-making power.
The number of victims and perpetrators that converge in this criminal network poses obstacles for investigating, prosecuting and punishing criminally and administratively both immediate and intermediate perpetrators, and for compensating victims; especially in justice systems traditionally characterized by impunity, as in Mexico and Colombia.The recent events reported allow us to suggest that the situation in Mexico is no less complex or serious [than that in Colombia].
If in these countries the investigation of a criminal offense that involves one victim and one victimizer in a random event takes several years, what can be expected from an investigation that involves thousands of victims and hundreds of perpetrators in the commission of crimes not isolated, but planned and systematic, up to and including massive crimes against humanity?
Given this criminal complexity, the temptation is to install jurisdictional courts specialized in investigation or prosecution, to approve extraordinary resources and personnel, and to propose laws with stiffer penalties. However, these measures are insufficient in the medium and long term, because new legal and sociological concepts are needed: new methods of analysis and legal investigation, and new criminal and administrative law different from the traditional.
Crimes traditionally defined in the criminal code, and approaches for investigating and punishing, are usually insufficient to address such complex situations, simply because the criminal code does not take them into account.
Therefore, in order to address comprehensively the investigation and judgment of complex situations like those of Iguala and Tlatlaya and, above all, to prevent such situations from recurring, it would be necessary, among other actions, to:
1. Recognize the existence of macro-criminality and of illegal networks responsible for carrying out systemic crime that varies in nature, entrenched in public and private institutions.
The cases of Iguala and Tlatlaya illustrate macro-crime situations where multiple perpetrators played specific roles to facilitate the cooptation of public and private institutions, inflict massive and systematic violence and, ultimately, strengthen de facto political and social power. In Iguala, this power was made manifest when part of the institutional framework of the municipal police was put at the service of strictly criminal interests.
The existence of macro-criminaltiy involves recognizing that these cases are not isolated, random or spontaneous, but that they instead result from systemic and planned action of criminal networks that operate across public and private institutions.
The failure to investigate, capture and punish those most responsible, both immediate and intermediate, both bosses and hitmen like those who know their way around the gray area between legality and illegality in public and private institutions, raises the probability to "high" that similar situations are going to happen again.
This, however, does not mean accepting that the State, in its entirety, has been subjugated, captured or co-opted by macro-criminality. Although there are institutional bodies of the State that have been reconfigured and currently operate in the service of crime (as members of the Iguala municipal police who participated in kidnapping the students), this does not mean that the entire State, let alone at the state and national level, has been subjugated.
Even in serious situations such as those currently facing Mexico, there are social sectors willing, interested and committed to restoring communal life. These sectors are also part of the State. Beyond the current government, Mexican society, which is part of the State, has not given up.
2. Understand the structure and functioning of criminal networks, which does not consist exclusively in explaining and presenting an organization chart of kingpins and hitmen, but in identifying the financial, political and social structures that support the criminal network.
This is essential, because in the criminal gray area, actors with more power work to connect the legal and illegal sectors of society.The complex criminal network that led to the disappearance of the 43 students, with the support of members of the municipal police, is not only made up of the gunmen, Abarca and the police chief. In order to operate with such a high degree of effectiveness and with the protection of complete impunity, a complex network of interactions with politicians, public officials and various private agents was necessary. If this network is not identified, investigated and punished, the most responsible ones—the ones who have provided the economic, social and political resources for the criminal network to operate—will continue unpunished and held harmless.
That is: It is not enough to identify Abarca as the mastermind of the disappearance of the 43 students and obtain his legal proceeding and punishment. It is especially necessary to identify those agents who mediate "in the shadows" between legality and illegality; they supplied the resources such that agents like Abarca could act.
3. Develop and adopt jurisprudence that takes into account the current complex situation; especially in order to investigate and punish immediate and intermediate agents of crimes such as homicide and forced disappearance, forced displacement, money laundering and criminal financing. For this can be put forward the implementation of legal concepts such as conspiracy for aggravated crime, that would punish public officials in a particularly harsh manner for cooperating with crime, not only in cases of murder, but also of forced disappearance, torture and severe corruption.
If during the last decade in Colombia, the Supreme Court had not defined and implemented new case law for investigating and punishing collaboration between senior government officials and narco-paramilitary groups, those officials would probably have gone completely unpunished, even when their collaboration was spelled out many times, at least indirectly, in the commission of massacres.
It is easy to understand why agents with decision-making power, such as successive governments and political leaders, deny the existence of macro-criminality and the involvement of institutional sectors in networks of systemic crime: This would imply acknowledging their share of the blame for the infiltrated legal institutions, which requires a decided and steadfast political will that, unfortunately, is lacking in the majority of countries in Latin America.
Therefore, in the absence of political will, the accompaniment of the international community is essential: communications media, multilateral agencies, diplomatic missions and non-governmental organizations [NGOs].
If the existence of macro-criminality resulting from the operation of networks of systemic crime is not acknowledged; if suitable methods for police and judicial investigation are not adopted for understanding the complexity of these networks; and if comprehensive jurisprudence is not developed to punish criminally and administratively the involvement and the degree of responsibility of public and private actors, then what happened in Iguala and in Tlatlaya will be dealt with as yet one more isolated case, a random coincidence. In this scenario, in the future will appear more mass victims from the immediate and intermediate action of public and private actors in the Mexican State. [All emphasis in the original] Spanish original.
See also: Mexico in Crisis: Beyond the Drug Cartels - Part I.
*Luis Jorge Garay Salamanca, pursued Industrial Engineering studies, MA in Economics from the University of the Andes, Bogotá, Colombia; Ph.D. in Economics from Massachusetts Institute of Technology, Cambridge, MA. Visiting researcher at the universities of Cambridge and Oxford (1981-1982), England, and the Inter-American Development Bank (IDB) (1994). IDB consultant (1994-2001), United Nations Program for Development (2000-2002), National Planning Department of Colombia (1996-1998) and Comptroller General of the Republic of Colombia (2001-2002). Special Adviser to the Ministry of Finance for management of external debt and macroeconomic programming (1984-1991), Ministry of Foreign Trade in negotiating free trade agreements (1993-1994) and Ministry of Foreign Affairs of Colombia.
**Eduardo Salcedo-Albarán, Philosophy, MA in Political Science from University of the Andes. Served as Area Coordinator in Methods and Teaching at the University of the Rosary in the areas of technology, evolution and genetics. He has written about crime and violence in Colombia and has been an advisor to Colombian State crime prevention agencies. He is author of the book "Corruption, Judgment and Sense" (2007) and coauthor of the book "The Capture and Coopted Reconfiguration of the State in Colombia" (2008). Posted 9th December 2014 by Jane Brundage" (2008).