Guatemala genocide trial, in final stages, still faces critical obstacles and complex political climate

Although the trial of former de facto head of state Efrain Rios Montt and his then chief of military intelligence, Mauricio Rodriguez Sanchez, resumed on Tuesday April 30 after nearly two weeks of suspension, its fate is far from clear. On April 19, the trial was suspended amid legal challenges only moments from closing arguments.

With only a reported six defense witnesses remaining, and an expected four hours of closing arguments, it is possible that the trial could conclude this week. However, as has been the case for the last thirteen years, and especially the last 13 days, serious legal and political obstacles could stall or derail the trial, even at this late stage in the process.

Guatemala, like much of the world, celebrated Labor Day on May 1. As a national holiday, government institutions were closed, including the First High-Risk Tribunal A (Tribunal Primero A de Mayor Riesgo), where the historic trial has taken place.

Other branches of the Guatemalan judiciary, also closed, have still not resolved any of the outstanding legal challenges. Chief among the half-dozen outstanding amparos is the question of the status of an April 18 ruling by Judge Carol Patricia Flores, a first-instance judge who oversees evidentiary issues and other pre-trial matters. Judge Flores issued an extraordinary ruling that sought to return the case to its status on November 23, 2011, and nullify all the activity after that date, including the 20 days of testimony in the trial court, from March 19 through April 18.

Although Judge Yassmin Barrios, the judge presiding over the trial court, classified this ruling as “illegal”, she suspended the trial and announced that she would seek clarification from the Constitutional Court.  A series of legal challenges, some seeking to reject Judge Flores’ decision and others to uphold it, have been filed in various Guatemalan courts. To date, however, the Constitutional Court has yet to weigh in on the issue.

Indeed, the Constitutional Court has insisted that it is waiting to receive a legitimate legal complaint concerning the ruling—the Court’s secretary stated last week that “only a fax” had been received from Judge Barrios, and not a valid official request for review.  Another petition submitted by Center for Legal Action and Human Rights (CALDH, one of the civil parties), was rejected on the ground that it needed to be heard by an appeals court first.

Analysts in Guatemala are divided in their interpretations of the significance of the Constitutional Court’s refusal, to date, to clarify Judge Flores’ ruling.  For some observers, the Constitutional Court’s refrain is a sign that it wants Judge Barrios to continue to exercise authority over the process. Others express concern that the Constitutional Court’s failure to issue a clear ruling means that it is reserving its authority to act later, at a decisive moment, exercising even greater power over the ultimate outcome of the process.

In addition to the uncertainty surrounding the pending legal challenges, the reorganization of both defendants’ defense teams on Tuesday, at the reconvening of the trial, presents clear challenges to the court going forward this week. When the trial resumes Thursday morning, newly re-instated defense attorney Francisco Garcia Gudiel and newly appointed public defender Otto Ramirez will be expected to produce the remaining six defense witnesses.

The defense also has asserted that it wishes to admit certain video as evidence.  (An earlier effort to introduce video evidence on April 17 was rejected, on the ground that the material was submitted improperly. The defense has been given the opportunity to clarify its evidence and re-submit).

Earlier defense actions suggest that the court may expect continued resistance. Throughout the trial, the defense attorneys have stalled, objected, obstructed, and otherwise challenged the process, as a fundamental part of their legal strategy. The defense lawyers have, to date, submitted more than a hundred amparos since the indictments were issued in 2011 and 2012. On April 18, the defense lawyers walked out of the trial in protest, en masse.

As a result of the walkout of the defense lawyers, Ramirez was appointed as a public defender, with Tuesday as his first day representing Rodriguez Sanchez. Thus, any analysis of the strategies of the defense attorneys should not extend to him.

As the trial advances toward a conclusion, some have also noted the significance of the public statements of President Otto Perez Molina. In the weeks and months before the trial began, Perez Molina said little publicly in relation to the charges, the trial, or its likely impact. However, at the start of the trial, the president expressed the opinion that “there was no genocide in Guatemala.”

On April 4, a prosecution witness told the court that Perez Molina—then the officer of military installations in Salquil Grande, Nebaj and, according to the witness, known as Tito Arias—had ordered soldiers to burn and loot villages. The president reportedly complained that his rights had been violated by the testimony presented in court. On April 25, President Perez Molina acknowledged that he had operated under the pseudonym Tito Arias during the war, but denied that he was responsible for atrocities.

Perez Molina had previously acknowledged his pseudonym and role, including in a 2000 column in Prensa Libre. In that column, he identified that, under the name “Tito,” he was stationed in Santa Cruz del Quiché commanding troops in the Ixil Triangle. He asserted that his military commands to his troops during the war were to “win the confidence of the population” in order to defend them and secure their collaboration and respect.

In the Prensa Libre column, Perez Molina also described a population afraid of both the guerrillas and the military, and living in “subhuman conditions” (condiciones infrahumanas). He stated that part of the military strategy of the Guerrilla Army of the Poor (Ejercito Guerrillero de los Pobres, or EGP) was to “involve the whole family, that is to say, not just the young people of fighting age, but also women, children and the elderly” (involucrar a la familia completa, es decir, no solo a los jovenes de edad de combatir, sino tambien a mujeres, ninos y ancianos).

Recently, with the trial enmeshed in the legal quagmire of competing legal challenges, President Perez Molina has expressed support for due process, the rule of law, and support for the independence of the judiciary. He affirmed that he would not interfere in the process, and described it as “a very emblematic case which has polarized Guatemalan society and revived the period of the armed conflict” (un caso muy emblematico que ha polarizado a la sociedad guatemalteca y ha revivido el momento del enfrentamiento armado).

As the trial struggles towards its conclusion, Perez Molina heads to Costa Rica May 3-4 for a regional summit, where he will meet United States President Barack Obama, amongst others.