April 29, 2013 2:40 pm

Guatemala’s genocide trial — a ‘tangled’ path to justice

Ixil indigenous people, survivors of Guatemalan civil war, gesture in the Guatemalan Court of Justice in Guatemala City on April 19, 2013.

Johan Ordonez (AFP)/Getty Images

Survivors of a horrific era of Guatemala’s history — one of murder, torture, rape and kidnappings – relived their and their families’ ordeals in courtroom testimonies for much of the last month, only to learn their legal saga may have to start over.

It’s the closest victims have ever come to seeing justice in the three decades since tens of thousands of indigenous Maya were killed in a scorched earth campaign, considered one of the most brutal periods of the country’s 36-year civil war.

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The landmark trial of 86-year-old former military dictator Efraín Ríos Montt on charges of genocide and crimes against humanity is now tangled in a mess of injunctions and appeals that threaten derail the case.

This legal limbo is not only the result of a flawed justice system that’s left legal experts scratching their heads: It appears the defence’s modus operandi is to fight the case with procedural obstacles rather than factual evidence.

There have been more than 100 appeals and counter-appeals since the case was in its pre-trial stages 17 months ago, says Marcie Murphy, program director for the International Centre for Transitional Justice.

The more appeals and injunctions the court has to deal with, the better the chance the defence has to have the case drag on without a verdict or see it thrown out.

Murphy says the defence strategy of focusing on procedure rather than substantive evidence has been a pattern with human rights cases in Guatemala.

Until late Thursday, it looked as though the case could be sent back to square one.

Earlier this month, Guatemala’s highest court – the Constitutional Court — ruled defence evidence excluded from the pre-trial phase, in Nov. 2011, should have been included.

Pre-trial Judge Carol Patricia Flores, tasked with formally incorporating the evidence into the case file, said last week – days before the trial was set to end – the case should not have gone forward without that evidence and the entire trial should be annulled.

But both trial judge Jazmín Barrios and attorney general Claudia Paz y Paz both said Flores did not have the jurisdiction to toss the case out and start over, and the Constitutional Court said on Thursday Flores’ duty was not to pull the plug.

Flores is due to hand the case file, with the reincorporated evidence, back to the trial court on Monday.

In the meantime, a defence challenge, stemming from the first day of the trial, could also put the case in jeopardy. When the trial began March 19, Ríos Montt’s lawyer Francisco García Gudiel tried to have two of the trial judges recused.

Barrios removed Garcia Gudiel from the trial, appointing the lawyer for Ríos Montt’s co-accused – former director of military intelligence, José Martin Rodríguez Sánchez – to represent the ex-dictator. But now the defence is arguing Ríos Montt was left without representation on the opening day.

If higher courts agree to consider that appeal, Murphy said, “it would almost certainly nullify the trial… and a new trial court would be established.”

The suspension of proceedings on April 19 was a devastating development for the families of at least 1,771 Ixil Mayan victims of massacres carried out by military forces three decades ago.

The Ixil Maya, from the department of Quiché in northwest Guatemala, were just one of multiple indigenous groups the military targeted around the country.

“People are pretty furious about how this happened. So many people believe there could be justice in Guatemala,” says Jackie McVicar, Programs Coordinator for the Maritimes-Guatemala Breaking the Silence Solidarity Network. Now, she said, they’re questioning whether that’s possible.

“This is like another layer into the defence trying to create a web, a legal web that’s going to take forever to untangle,” McVicar said.

Ríos Montt and Rodríguez Sánchez are charged with genocide and crimes against humanity, accused of ordering a brutal series of attacks, purportedly meant to crack down on leftist guerrilla forces and their supporters.

The Historical Clarification Commission of Guatemala, established in 1997 to investigate Guatemala’s bloody past, counted 626 villages where massacres took place and reported as many as 3,000 people a month had been killed or disappeared during Ríos Montt’s time in charge of the country. Of those massacres, 344 happened in Quiché.

After interviewing more than 9,000 witnesses between 1997 and 1999, the commission determined there had been a “governmental policy of genocide in Guatemala.”

The case brought forth on behalf of the Maya Ixil people is the furthest any effort to try Ríos Montt has gotten. A genocide case presented to the Spanish courts in 2005 was thwarted by appeals from defence lawyers.

His election in 2007 gave him immunity from further attempts at prosecution.

But, Ríos Montt was charged in Guatemala on Jan. 26, 2012 — just days after a five-year term in congress came to an end.

Battle against impunity

This is the first genocide trial to take place in Latin America.

And if Ríos Montt is found guilty, it will also be a sign for many that Guatemala’s culture of impunity may be changing.

Amnesty International researcher Sebastian Elgueta says if the case falls apart it will be a big win for people in power that think they can avert justice by abusing the system.

“The idea that you can avoid prosecution for something like genocide and crimes against humanity by ensuring a procedural mess is something that goes against the basic principles of justice and human rights,” he says.

The U.N.-backed International Commission against Impunity in Guatemala (CICIG) says the country is rife with organized crime and calls  the justice system has a legacy of being ineffective. CICIG points out only two per cent of the approximately 6,000 homicide cases, annually, ever go to trial.

“What this trial has done has indeed shown the system is in need of reform,” Elgueta says.

Among the trial’s detractors is current president Otto Pérez Molina. He has gone on record as saying there was “no genocide in Guatemala” and recently warned there could be “negative consequences” regardless of the trial’s outcome.

Pérez Molina has more than just an administrative interest in the trial: He was a major in the Ríos Montt’s military, and is shown in a 1982 interview explaining how military forces attacked Ixil communities under his command. Prosecution witness Hugo Reyes, of the Legal Action Center for Human Rights, alleged on April 5 Pérez Molina issued orders to raze villages and carry out executions in the Maya Ixil region.

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