The genocide retrial of former Guatemalan strongman José Efraín Rios Montt, a process which has been plagued by interruptions and delays over the past year, was suspended again early last week. Erika Guevara-Rosas, Americas Director at Amnesty International, summed up well the strong reaction felt by many. “By allowing Ríos Montt to evade the courts for decades,” Guevara-Rosas said, “the Guatemalan authorities have been playing a cruel game with the victims of the tens of thousands of people who were tortured, killed, disappeared and forcibly displaced under his command and their relatives.”
Though the decision to adjourn was taken behind closed doors, one of Rios Montt’s defense attorneys, Jaime Hernández, told reporters that the court had “decided to suspend the start of the trial of former general Ríos Montt because of three pending petitions to resolve.” Beyond this, it has not been easy to obtain accurate information regarding the court’s decision. Nor is it clear when the trial will resume, though there is good reason to believe that it will not happen for many months, if not longer.
To learn more, I spoke with Jo-Marie Burt, Professor of Political Science at George Mason University, Senior Fellow at the Washington Office on Latin America, and a close observer of the Rios Montt trial through its various iterations. We discussed what happened in court yesterday, what the ramifications might be, and where things will likely go next.
Michael Busch: It’s been a bumpy road up to this point in the trial of Efrain Rios Montt. Why has it been so difficult to move forward, and what’s been the cause of all these delays?
Jo-Marie Burt: Well, to begin with we need to remember that this has been going on for over two years now. You’ll recall the original sentence was handed down on May 10, 2013. And then ten days later, the Constitutional Court overturned the sentence, and declared that a partial retrial was necessary because of presumed due process violations. We believe it was illegal for the Court to emit the decision at that time—there is an appeals process that was not followed. Secondly, we believe that the substance of the decision was deeply problematic, and it’s important to remember that it was a split decision, and that two judges laid out clear arguments in their dissenting decisions as to why this ruling was unacceptable. It was really a political decision to overturn the sentence. There was intense pressure coming from economic elites and from military sectors who simply could not countenance a genocide verdict.
There was also a lot of confusion about what was going to happen next. There were questions about whether it was legal to hold a “partial retrial” or whether they were going to have to do the whole thing over again. And to be honest, that hasn’t actually been determined because there hasn’t been a restart of the trial. The High Risk Tribunal A, which was in charge of the case, had to recuse itself because it had already rendered a decision in the matter. So the case was sent to High Risk Tribunal B. Once that happened, Tribunal B made clear that it had a lot of other things going on, and it wasn’t going to be able to get to it until January 2015.
So that was a year and a half from the moment the verdict was handed down and then overturned through to when the trial was set to restart. I went down to Guatemala for the restart of the trial on January 5, 2015, fully aware that it was unlikely that it was going to actually restart. At the hearing that morning, the defense lawyers for Rios Montt demanded that the presiding judge recuse herself from the case, claiming she was biased because she had written her dissertation on genocide in Guatemala. On the contrary, you would think that this would qualify her to be someone on this panel. But apparently not, according to the defense attorneys. The judge rejected the recusal, and it seemed like she did so confidently, as if she knew she had the support of the other two judges on the panel. She spoke very forcefully, and at one point she even said that Rios Montt was not authorized to be absent from the proceedings and she ordered that he be brought in. This was the moment when he was brought in on a stretcher. It was quite a show. Once the hearing resumed, the other two judges accepted the recusal motion, much to the surprise of the presiding judge, and that was it, the hearing was over.
Since then, then a series of legal motions and recusals have been playing outover the course of this past year, and they haven’t been resolved. The problem in Guatemala is that the trial court that is in charge of the case doesn’t have sole dominion over it, so lawyers can present legal motions in other courts. What ends up happening, then, is that the defense lawyers sometimes seek out courts that are favorable to them, or can be manipulated easily, to present their frivolous motions—motions that are basically designed that are designed to delay or obstruct the process. This is a defense tactic that has been criticized by the Inter-American Court for Human Rights as an abuse of the system.
That’s really been the strategy of Rios Montt’s legal team all along. Once Rios Montt lost his parliamentary immunity and was charged in early 2012, his lawyers lodged dozens of legal motions designed to delay the process from coming to open trial the in first place. It took more than a year from the initial accusation to the day the oral phase of the trial began, on March 19, 2013. So, they’ve been doing this from the very beginning. And once the trial started, they continued with this strategy. One of the defense lawyers even stated publicly that he would file so many legal motions as necessary to deadlock the process. The lawyers that I’ve spoken to who represent the victims say that there have been well over one hundred different motions filed, motions which it’s safe to say are designed to trip up the process, to prevent it from moving forward. The bottom line is that they’ve managed to do that quite successfully. And now we’re looking at another six months to a year until there’ll be another attempt to restart the trial. That is, of course, provided Rios Montt is still alive at that point.
MB: This most recent effort to restart the trial was also suspended. What happened?
JB: The court decided because there are at least three legal motions that have yet to be resolved, they should delay the restart of the trial until these motions are resolved. This is one of the perversions of the Guatemalan justice system; other courts have the power to make decisions over a case that is ongoing in another tribunal. Two of the motions were filed by the defense, both related to their effort to recuse the presiding judge.. This was also attempted last year, and led to something of a rollercoaster ride—first they secured the recusal, then they didn’t, then they did, then they didn’t again—so they submitted new motions calling for review of their original recusal motion which was not accepted. It seems safe to say this is intended to do nothing else than delay the process some more.
The more substantive issue is a motion filed by the civil parties regarding the legality of holding the trial behind closed doors for both of the accused. Because of Rios Montt’s health situation—he reportedly has dementia—the tribunal determined that it could hold the hearings behind closed doors without the participation of the public or the media, and the defendant does not need to be in attendance. The civil parties say that that is acceptable, but not in regard to both of the parties, namely Rodriguez Sanchez, because he doesn’t have dementia. Therefore, they are arguing that the cases should be separated—one case for Rios Montt behind closed doors, and one for Rodriguez Sanchez which has to be held in open court. No decision about that has made, though.
The court has decided that until all of these pending matters are decided upon by the courts that have received the motions—and as of yet have failed to rule upon them—the case is not going to move forward. The effect is to not only stall the process further, but to further victimize the victims, and further prevent their access to truth and justice which is theirs by right as victims. It’s a larger problem of the justice system in Guatemala, of the lawyers who are engaging in what Guatemalans call “malicious” litigation—an abuse of the process, basically. The judicial system in Guatemala, and many judges, allows this to happen. It’s a systemic problem that is being taken advantage of to delay this process.
It might seem like trials in post-conflict societies like Guatemala, with weak institutions, powerful de facto powers, and the like, aren’t possible. But that would be wrong. Experience has proved that in Guatemala it is possible for cases like this—complex, human rights cases—to move forward. Early last year, there was another very emblematic case of gross violations of human rights. This was the case of the bombing of the Spanish embassy in 1980. In this case, indigenous peasants from the Peasant Unity Commission (CUC) took over the Spanish embassy as a way of demonstrating their demands in the face of a violent, repressive government. Government forces led an all-out attack on the embassy. In the process the embassy was set on fire, and almost everyone perished inside, including members of the embassy staff. Victor Menchu, the father of Nobel Peace Laureate Rigoberta Menchu, died in this attack. It was a tremendous international incident, but it took 35 years before the case came to trial, and not everyone that we would have wanted to be held responsible was put on trial.
The Chief of Command Six of the National police at the time, Pedro García Arredondo, was put on trial. García Arredondo was charged with orchestrating the massacre and giving orders to prevent anyone from leaving the building. He was convicted and sentenced to 90 years in prison. He was the head of the operational unit responsible for this tragedy. But the intellectual authors of the Spanish embassy case were not prosecuted. Still, the case did move forward, García Arredondo was found guilty, and he was sentenced to prison for a grave violation of human rights. When Guatemalan courts start going after the higher-ranking military officers, the system goes into overdrive. There are all these actors who engage in a variety of strategies to use the system in such a way what it simply breaks down. And that’s what I think is happening in the genocide case against Rios Montt, unfortunately.
MB: What’s your sense of where things will go from here? Are you hopeful?
JB: With the genocide case, my hope has waned considerably. I am very skeptical that the system will respond in such a way to allow this case to move forward. Rios Montt is old, he’s infirm, he could very well die before the case resumes again. Indeed, there are some who are hoping that is the outcome. There are people who don’t want a verdict in this case. They don’t want a verdict against Rios Montt, but they especially don’t want one that talks about genocide. Racism and discrimination against Guatemala’s indigenous population is very much alive and well. A verdict that stands, one that talks about there having been genocide, shines a light on these practices, and becomes a clear call to action to undo the structures that have allowed such discrimination and violence to persist for centuries.
I think that’s one of the other main elements of the Rios Montt case. You saw it the day the verdict was handed down in 2013. The country’s powerful business association, CACIF, immediately held a press conference and argued that the verdict put Guatemala on par with Nazi Germany and Rwanda. It was a kiss of death for Guatemala, CACIF said, and it could not stand. In their mind, it stained Guatemala’s international image. They believed the verdict would complicate their business dealings—and there’s a good case to be made that, in fact, this was not the case, but it was their perception—and for this reason they did not want to see a genocide verdict. It’s a lot more complicated than simply defending the military, but involves broader, societal practices in a country that is marked by deep, historical, and class divisions.
MB: The genocide retrial isn’t the only human rights situation developing in Guatemala right now. A group of retired military officers was arrested last week in connection with other massacres that took place during Guatemala’s civil war, and there are other trials also underway. Can you talk a bit about this, and what you think the significance is of what we are seeing?
JB: These arrests are stunning. We are talking about high-ranking military officers who were responsible for running the counterinsurgency in Guatemala between the late 1970s and mid 1980s. The Public Military arrested 18 officials in relationship to two cases they have been investigating for years, which I’ll talk about in a minute. But first let me say something about the broader shifts I see that have made this posisble.
Over the course of the last several years in Guatemala there have been two critical developments that change the equation of impuntiy in the country. One is the slow but steady empowerment of social movement actors—of civil society writ large. Victims associations, human rights organizations, and other civil society organizations are better organized than in years past. The civil society protests seen last year that resulted in the ousting of sitting president Otto Perez Molina are a clear example of this. The fear that immoblized Guatemalan civil society for so long is giving way to new forms of civic engagement. In relation to these past crimes cases, individuals and organizations have been working tirelessly to advance their agenda for truth and for justice. They’ve brought cases before the public ministry and in some instance to the Inter-American system. And in fact there have been a number of rulings against Guatemala by the Interamerican Court of Human Rights. There have also been attempts to bring cases using universal jurisdiction. The genocide case had its moment in the Spanish system, for example. The Spanish Embassy case also was before Spanish judicial authorities.
On the other hand, and along the second line, the Guatemalan legal sector—the public ministry and the judiciary—has been slowly building its capacity to investigate, prosecute, and adjudicate complex cases. It’s been a slow process, but there are visible results. It is important that there’s been significant international support: notably from the International Coalition Against Impunity in Guatemala (CICIG)—the UN body that was created to help investigate current crimes, such as organized crime, drug trafficking, money laundering, gang violence, but also to build up the capacity of Guatemala’s legal institutions. It was very important in strengthening the public ministry’s ability to carry out its work.
It is also important to think about all the amazing people holding different positions in these institutions and the leadership role the played. In the Guatemalan judiciary, you had magistrate Cesar Barrientos, and Claudia Paz y Paz in the public ministry, just to name two people who have played important leadership roles in developing strong—scientific—capacity to investigate, prosecute, and punish crimes. Not just human rights crimes, but all crimes. Barrientos, for example, was fundamental in developing the high risk court system, which has since been recognized internationally as a very important example of judicial independence and excellence in adjudicating complex cases, ranging from drug trafficking and organized crime to gang violence and even human rights cases. So we’ve seen the strengthening of civil society alongside the strengthening of these institutions within the Guatemalan state. Obviously, this is crucial. It’s where transitional justice takes place. The prosecutor’s office formalizes accusations and prosecutes crimes, and the judiciary adjudicates them. There has been a confluence of these two developments notwithstanding those who continue seeking to obstruct and delay these cases.
This is what made the arrests carried out on January 6 possible. Four or five months ago—even a month ago,—I was not terribly optimistic about the future of transitional justice cases given what we know about the newly elected president, Jimmy Morales, and his alliances with former members of the armed forces. However, there was this moment last week—the president-elect has not yet been sworn into office, remember—where the public ministry, which had been developing at least two cases, cases they’ve been working on for quite a long time said, “we have an opportunity to move forward on these two cases. We have all the evidence we need to demonstrate our case in court. We can do it now, or we can wait, not knowing what the future holds. Let’s do it.” The CREOMPAZ and Molina Theissen cases are two instances where there are significant amounts of documentary and testimonial evidence to draw on. We’ve seen a glimpse of this at the arraignment hearings that have been playing out in recent days. In the former case, over 550 bodies have been exhumed from a mass grave at what used to be known as Military Zone 21 in Coban, Altaverapaz, and 97 of them have been positively identified as victims of forced disappearance or massacres. In the second case, government forces abducted Marco Antonio Molina Theissen, a 14 year old boy, from his home; this was after his 19 year old sister had been arrested and tortured, but managed to escape. Charges were read against the arrested officials in two separate arraignment proceedings over the past several days, and fifteen of the eighteen have been ordered into detention while the public ministry continues its investigation. What is so extraordinary is that these are high-ranking military officers who are accused of some of the worst atrocities committed during Guatemala’s internal conflict (such as Benedicto Lucas Garcia, head of the army between 1978 and 1982, brother of former dictator Romeo Lucas Garcia), but many of them are also believed to be at the core of crime syndicates that continue to bleed Guatemala dry. This is a defining moment in Guatemala’s history, and for the struggle against impunity.
Jo-Marie Burt teaches political science and is director of Latin American Studies at George Mason University,. She is also a Senior Fellow at the Washington Office on Latin America (WOLA), where she conducts advocacy-based research on human rights and transitional justice issues. Dr. Burt has published widely on state violence, human rights, and transitional justice in Latin America. She has engaged in collaborative research and advocacy projects with human rights organizations in Latin America and the United States, and was a researcher for the Peruvian Truth and Reconciliation Commission. Dr. Burt has been an expert witness in human rights cases in U.S. Courts, in Peru, and before the Inter-American Court for Human Rights. She was an international trial monitor for the Rios Montt genocide trial (her co-authored report can be viewed here). She is currently writing a book about human rights prosecutions in Latin America. Follow her on Twitter at @jomaburt.
Michael Busch is Senior Editor at Warscapes magazine. Follow him on Twitter at @michaelkbusch.