Guatemala: Six Months to Examine the Past and Define the Future

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As Guatemalan political parties gear up for the 2011 presidential elections in September, human rights organizations are preparing for some of the most important war crimes trials in the country’s history. With a leading presidential candidate linked to one of the nation’s most high-profile and controversial human rights cases, the way events play out in the next six months will be indicative of Guatemala’s ability to confront the entrenched impunity from the internal conflict.

The case of Everardo Bámaca (born Efrain Bámaca Velazquez) has become an emblematic example of the ties between perpetrators of past violence and the current political and economic elite. Everardo, an indigenous guerilla leader from San Marcos, was captured on March 12, 1992. He was held and tortured for over a year by the Guatemalan military before being killed. His wife, American lawyer Jennifer Harbury, worked for two decades to piece together the complex series of events that occurred while Everardo was in captivity. She amassed a large body of evidence that implicates a CIA asset and many high-ranking members of the Guatemalan military.

Jennifer presented the case to the Inter-American Court which, on November 25, 2000, found the Guatemalan military guilty of Everardo’s disappearance, torture, and execution. However, it wasn’t until 2009 that the Guatemalan government opened a criminal investigation and began to pursue the case.

Implicated in the case is former General Otto Pérez Molina, the recently declared presidential candidate for the Patriot Party. (A New York Times article from March 24, 1996 details Pérez Molina’s participation in a high-level meeting convened to decide Bámaca’s fate, for example.) Pérez Molina was Commander of the Quiché military base in the early 1980s, during the height of the genocide against the Mayan population. He later became head of military intelligence, or G-2, infamous for carrying out forced disappearances and extrajudicial executions during the armed conflict.  In Guatemala, where Peace Accords were signed after almost 36 years of war, the vast majority of crimes from the internal conflict remain in impunity. This is not surprising, considering that the intellectual and material actors responsible for torture, forced disappearances, extrajudicial executions, and genocide were never held accountable during the peace process. Many have held on to positions of power, either openly as elected officials, or through clandestine criminal networks.

From local mayors to Supreme Court justices, Guatemala’s public institutions are crawling with officials who benefit personally and professionally from continued impunity – and who aim to ensure that they are never held accountable for their crimes. Take, for example, the dictator responsible for the state-sponsored genocide in the indigenous highlands, Efraín Rios Montt, who served as President of Congress from 2000-2004. He has avoided extradition to Spain on charges of genocide by returning to Congress for the 2008-2012 term.

The same weak and broken institutions that, by default, protect war criminals have become infamous in the international arena for their failure to confront organized crime and gang violence. The UN-backed Anti-Impunity Commission (CICIG) has been working to prepare Guatemalan prosecutors and law enforcement bodies to investigate and dismantle this corruption. While advances have been made, the criminal structures have not been dismantled and, by some accounts, are gaining traction. 
Meanwhile, a very persistent civil society and concerned international human rights community continue to demand justice for numerous key cases of human rights violations from the internal conflict. Many of these cases, which have languished for 20 to 30 years with little hope for justice, are finally advancing and are expected to go to trial in the coming months.

  • The Bámaca case, which implicates not only Pérez Molina but also other high-level military leaders, has been moving forward, albeit haltingly, due to the continued pressure of Jennifer Harbury, the Inter-American Court on Human Rights, and the international community. It has exposed rifts between Guatemala’s Constitutional Court and Supreme Court of Justice, and has shone a spotlight on Guatemala’s reluctance to comply with international law. In February 2011, Jennifer Harbury was finally allowed to give her testimony in Guatemalan courts. If the judicial proceedings were allowed to continue, the trial would take place in the next six months.
  • The trial of three ex-soldiers charged for participating in the massacre of 251 men, women and children at Dos Erres, Petén, in 1982 is set to begin in July of 2011. The massacre was one of the largest during the conflict and was perpetrated by the Guatemalan special forces unit, the kaibiles. The case was opened in Guatemala in 1994 and after the government’s attempt to shut it down, was taken to the Inter-American Commission. Despite open arrest warrants for 17 former kaibilies, only three men have been arrested in Guatemala. (In 2010 the US Justice Department issued arrest warrants for four other ex-kaibiles involved in the massacre; the men committed immigration fraud when they lied about their participation in the massacre on US citizenship forms. Gilberto Jordan was sentenced to ten years in prison in a Florida court in September 2010 and Jorge Vinicio Sosa Orantes, arrested in Alberta, Canada in January, may be extradited to Guatemala. )
  • The case of the 1984 forced disappearance of student leader Fernando Garcia went to trial in October 2010, and two former police officers were found guilty. The court made the unprecedented decision to order an investigation into their superior officers. A hearing for this case is also pending in the Inter-American Court.
  • In December 2009, a Guatemalan colonel and three military commissioners were sentenced to 53 years in prison for the forced disappearance of eight people in the town of El Jute, Chiquimula.  Colonel Marco Antonio Sánchez Samayoa is the highest-ranking military officer to be charged for crimes committed during the internal conflict, and his was only the second trial of forced disappearance in the country. (There were an estimated 50,000 people forcibly disappeared during the war.) This year, despite ongoing threats, the Victims Committee and the Mutual Support Group are planning to press charges against the military high command implicated in the case.
  • Another important case, which charges ex-presidents Efraín Rios Montt and Fernando Romeo Lucas Garcia, and the high military command during their administrations, with genocide during the period 1981-83, is also waiting its day in Guatemalan courts. Prosecutors and victims have demanded the release of four key military plans from the Department of Defense that provide evidence of the government’s scorched earth policy in indigenous communities during the early 1980’s, but the plans have not been produced in full. (Based on universal jurisdiction for war crimes, a separate case for genocide, state terrorism, torture and other crimes against humanity has also been brought before a Spanish court.)

The momentum of these cases has been bolstered by last year’s appointment of Claudia Paz y Paz Bailey, a respected ally of human rights organizations, as the new Attorney General of Guatemala. (The first candidate named was dismissed in June 2010 after only a few weeks due to his connections to organized crime.) The Colom administration has also made concerted efforts to vet the notoriously corrupt police force and, with human rights champion Helen Mack as Police Reform Commissioner, there is hope that some long-term positive changes can be made.

Because of the overlap between the perpetrators of violence related to past and current illicit activities, war crimes cases have the opportunity to set a precedent for accountability for all human rights violations while making progress in exposing Guatemala’s deep-rooted system of corruption and organized crime.

This window of opportunity, however, may be brief. Guatemalan public institutions, already consistently teetering on the brink of collapse, are vulnerable to pressure, threats and corruption. Increased violence and political conflict during this electoral cycle will further burden an already struggling judicial system.

The appointment of new judges to the Constitutional Court, which occurred on March 14th, 2011, will be an important test of the strength and independence of the judicial system. National and international organizations have demanded that candidates chosen to serve on the nation’s highest court be independent, impartial, and honorable. These five magistrates will not only be responsible for ruling on the legality of a candidate’s bid for president, but also will be integral in determining which human rights cases are tried in court.

Human rights defenders, such as Jennifer Harbury, her lawyer Edgar Pérez, and many others working on the war crimes cases, will be at increased risk during the coming months. The international community must monitor the progress of these elections and how they affect the concurrent human rights court cases in order to promote transparency, rule of law, and the protection of Guatemalan citizens’ rights to truth, justice and accountability.