Almudena Bernabeu is head of the transitional justice program at the Center for Justice and Accountability. An international lawyer, she joined the effort to prosecute former general Rios Montt in 2004, five years after a complaint of genocide was first filed against him before the courts in Spain. She wrote this commentary, originally in Spanish, to mark the opening of the trial on March 19;
Today may be, finally, the day that the former general, dictator and president of Guatemala, Efrain Rios Montt, is tried for genocide in Guatemala. Today, after more than 13 years, is the day that all the investigative and legal efforts led by the victims and carried out by lawyers in Guatemala, Spain, and again in Guatemala converge in a court, with a demand for – this time without divisions or any mincing of words – the truth and a fair trial.
It is estimated that over 200,000 people were killed or disappeared at the hands of the Guatemalan armed forces between 1960 and 1996. I use this figure aware of not having included, for example, the victims of torture. With them included, the number is endless. Nonetheless, in the eyes of the international community, the conflict ended as it should have: with the signing of the Oslo Peace Accords in 1996. This, in turn, gave rise, meaning and a mandate to a commission of inquiry known as the Commission for Historical Clarification (CEH, in Spanish) to investigate these numerous abuses.
The CEH was crippled from its inception both economically and politically – as its chairman, the German jurist Christian Tomuschat would later admit to High Court Judge Santiago Pedraz – with no money, impaired powers, and without the support of powerful governments of the time such as those of the United Kingdom and Spain. The final report was honest, obviously, but clearly not enough for everyone and – most especially – for the victims, who met with their representatives in different organizations in Guatemala to decide their next steps only twenty days after it was published. The CEH never identified the responsible parties – this was part of its mandate – and most of those responsible for these terrible crimes still live in the same communities that they helped destroy and repress. This has done nothing but perpetuate fear and impatience.
Although several minor processes against low- and middle-ranking police commanders and the army have been successfully carried out, to date in Guatemala the individual criminal responsibility of any of the top brass has yet to be established. Until recently, all attempts aimed at justice in Guatemala were thwarted by corruption, illegal activities, indifference and fear. In this sense, there is no doubt that the impunity of past crimes and the impunity of the present are closely related. Impunity in Guatemala has grown to such tremendous significance that in 2007 the United Nations and the Guatemalan government created the International Commission Against Impunity in Guatemala (CICIG, in Spanish).
The current Guatemalan genocide case has dragged on for more than a decade. In 1999, the Rigoberta Menchú Tum Foundation (FRMT, in Spanish) filed a criminal complaint in the Spanish High Court against former President Efraín Ríos Montt and other senior Guatemalan officers accusing them of terrorism, genocide and torture. Despite the reluctance of most experts, the case was presented based on the model of the proceedings opened against the Argentinian junta and Augusto Pinochet, and was filed in Spain thanks to the principle – now diminished – of universal justice. The lawsuit was filed in the hope that the victims would obtain some of the justice that many believed the CEH report set out to deliver, but did not ensure. However, not all victims nor all their representatives supported the initiative. In fact, some in Guatemala – just as in many countries in the region – believed it was necessary to first test the validity and the legitimacy of the courts, judges and prosecutors in Guatemala. Taking the case out of Guatemala meant – wrongly or not – surrender (and one thing my experience has taught me for certain is that Guatemalans do not give up).
In 2000, the Center for Legal Action on Human Rights (CALDH, in Spanish) followed Rigoberta’s path, but this time in Guatemala, filing the first complaint of genocide in the country with the prosecutor on behalf of a group of genocide survivors belonging to the legendary Association for Justice and Reconciliation (AJR).
In 2004, the Rigoberta Menchu Tum Foundation invited me join their cause as an international attorney. I owe that first step to Gustavo Meoño, the Foundation’s director at the time. With his vision and his knowledge of the milieu, he had closely followed my work on investigations and cases in U.S. courts for crimes committed in El Salvador. At first, my work on the case was limited almost exclusively to investigating the whereabouts of one of the defendants, former Interior Minister Donaldo Alvarez Ruiz. Together with the Foundation, we found Alvarez Ruiz in Miami and again in Mexico, although – despite the arrest warrant and all our efforts – the Mexican authorities allowed him escape.
Between January 2000 and September 2005, Rigoberta Menchu’s attorneys – with the invaluable and generous support of close colleagues like Manuel Ollé Sese, Carlos Slepoy and others – fought against a battle (that was, in my opinion, savage) led by the prosecution; a battle that in issues of jurisdiction alone would exhaust all legal recourse, resulting in an appeal to the Constitutional Court for the protection of constitutional rights based on a denial of justice. With this development came the Supreme Court’s disconcerting decision on February 25, 2003: under the protection of article 23.4 of the Organic Law of Judiciary Power, it recognized the competency of Spanish courts to hear cases of genocide and other international crimes, should the crimes and their consequences have close ties to Spain, or for example, Spanish victims. As a result, although the complaint prospered partly because of the acts committed against Spaniards, the crime of genocide – and thus the desire for justice of the Guatemalan Mayans, the main victims of the conflict – vanished.
After much discussion in Madrid and Guatemala, a decision was made to submit an appeal for the protection of constitutional rights based on the violation of an effective judicial remedy with regard to the person of Rigoberta Menchú. On September 26, 2005, in an unprecedented move (with certain overtones of an abuse of power, but excellent) the Constitutional Court accepted the appeal, thereby reversing the decision of the Supreme Court. The ruling made clear the universal scope of Article 23.4 LOPJ and its legal grounds in the sense that that which is universal cannot be constrained to a nationality, a legislative decision, a historical link and – even less – to a political opportunity.
Consequently, the Constitutional Court’s decision marked the formal opening of pre-trial investigative procedures, thereby formalizing a legal strategy for the investigation of the crime of genocide committed against hundreds of thousands of Guatemalan Mayan Indians.
Examining Judge Santiago Pedraz, a sitting judge who had recently arrived at the Central Trial Court No. 1 of the High Court, decided to formally submit a letter rogatory to Guatemala, set for June, 2006, with the intention of taking statements from the defendants. Apparently, a similar commission from Belgium had taken place without problem.
When Judge Pedraz arrived in Guatemala, he found that an appeal for the protection of constitutional rights had been filed by the accused; this prevented him from taking statements from them. The trip was not in vain, because the judge did meet informally with the group of survivors who had tried to start a local investigation and hear some of their stories. Upon his return to Spain on July 7, 2006, he issued international arrest warrants against the seven accused of genocide, terrorism, torture, and other crimes. A few months later, he also issued formal requests for extradition based on the Extradition Treaty of 1895 between the two countries.
The warrants would be effective – since the accused were in Guatemala – only if a Guatemalan executed them. Given the weakness of the Guatemalan courts, this was seen as unlikely. However, in early November, 2006, the Fifth Criminal Court on Drug Trafficking and Crimes against the Environment of Guatemala (a first instance court) issued arrest warrants for four of the seven defendants.
The process then took two directions that had been hoped for and that were somewhat interrelated, though distinct. On one hand, it was necessary to design a legal strategy to prove the existence of a genocide; this would be done through the testimony of the victims, documents, and reports by experts. On the other hand, an effort had to be made to put pressure and get the suspects extradited from Guatemala to Spain. Despite the apparent difficulty regarding Guatemala – and although the attempt to extradite might not be successful – it had to be made in order to highlight the international obligation to bring to justice those accused in the Guatemalan courts. That is where what is – without any doubt – the other side of the story began.
Thus, we put the final touches on the creation of a specialized international legal team able to take on the challenges in this new phase. Besides myself, the team consisted of Manuel Ollé – a Spanish attorney with expertise in universal jurisdiction cases – professor and attorney Naomi Roht-Arriaza, attorneys at The Hague with experience in Guatemala and in international criminal law, attorneys and researchers from CALDH, and even from the Menchú Foundation in Guatemala. This team set two immediate tasks: on one hand, to design a strategy to file and prove the genocide case before the High Court and, on the other, to do everything possible to assist and wage a legal battle in the Guatemalan courts aimed at having the accused extradited to Spain, thereby building a possible path of justice in Guatemala.
Much to our surprise, the preparation and filing of the genocide case and the various measures of inquiry proposed by the legal team generated immediate effects in Guatemala. Part of the strategy was the presentation of witnesses from the many areas that were most affected by the military campaigns, especially those identified by the Commission for Historical Clarification. This required close collaboration between several of the country’s victims’ organizations. These organizations played an important role in choosing witnesses, working with them and traveling with them to give evidence in Spain.
At the same time, over nine experts’ reports designed to prove all the elements of the crime of genocide were prepared by experts from around the world. In Madrid, testimony was given by witnesses like CEH President Christian Tomuschat and Fredy Peccerelli – forensic anthropologist and president of the Forensic Anthropology Foundation of Guatemala, who testified for the first time in his life as an expert on the exhumation of more than 400 mass graves by his team over the past 15 years. Also submitted were significant military documents like the ‘Plan Sofia’, a military plan drawn up in 1982 that broadly implicated the army and the Guatemalan High Command in the mass murder of civilians.
In February 2008, the work in the High Court (and the fact that it became well-known in Guatemala) led to Guatemalan President Alvaro Colom announcing that he would order the military to open its files from the civil war period, and that he would send them to Guatemala’s Human Rights Ombudsman. Also, in a surprising gesture, a Guatemalan judge involved in the case decided that he would meet Judge Pedraz’s ongoing requests regarding a second letter rogatory aimed at taking statements from witnesses.
In May 2010, in conjunction with Women’s Link Worldwide, the lawsuit was expanded to include, for the first time, gender violence in a case of universal justice in progress within the framework of international criminal law and to guarantee the right to the truth with regard to the role that gender violence played in the Guatemalan genocide.
In addition, the filmmaker Pamela Yates traveled to Madrid in 2009 to testify and provide an interview with General Rios Montt filmed in 1981 at the height of the conflict in Guatemala as evidence. In the interview, Rios Montt admits having directed and controlled the troops who committed abuses against civilians. This experience became the basis of the documentary that opened the Sundance Film Festival in 2011, the film Granito, which recounts the circumstances of the genocide and the international team’s work throughout the preparation of its legal complaint.
In 2010, Claudia Paz y Paz was elected Attorney General of Guatemala. Since then, it has become necessary to focus our attention and efforts back on Guatemala once again. Among Paz y Paz’s priorities is the prosecution of those responsible for the genocide; this means that, without doubt, all the proceedings carried out in Spain and with Guatemala will be crucial. On January 26, 2012, Paz y Paz filed an accusation against former dictator General Efraín Ríos Montt for genocide and his role in the “scorched earth” campaign during the civil war.
After the relevant evidentiary hearings and with all appeals by the defense exhausted, today, March 19 – the day of San Joseph, the Silent Saint, whom we know only through his works and not his words – the former dictator is standing in the dock to be tried for genocide. Starting today, and for weeks to come, he will be obliged to listen to the testimony of scores of people who survived the most heinous of crimes. No words are needed – in my opinion, not even one – to understand the extraordinary nature of this action being carried out with the utmost dignity today by Guatemalans.
Though we were aware of the difficulties, we attorneys on the international legal team were always moved by the need to make a difference in the national situation in Guatemala and by the fact that – for many in Guatemalan civil society – this process and others like it were the only hope for change and for justice for the victims. It is an honor to have been able to make a contribution to it all.