This interview first appeared on 25 July in Plaza Pública. The original is available at http://www.plazapublica.com.gt/content/del-cielo-al-infierno-en-una-semana
Twelve years went by before the querella lodged by the Center for Human Rights Legal Action (CALDH) against the military high command finally got to court. It took two months for a judgment to be issued. And in just ten days, the conviction was annulled.
Juan Francisco Soto is the director of CALDH, one of the two associations that joined the genocide trial of Efraín Ríos Montt y José Mauricio Rodríguez Sánchez as querellantes. Two months after the case, Soto recounts the key moments in the trial, evaluates the situation and talks about the most heated controversies raised by the trial.
What is the current mood at CALDH? Do you feel defeated by the annulment of Rios Montt’s conviction?
No, not at all. We have had the satisfaction of seeing victims get the opportunity to go to court and express what they suffered during the internal armed conflict. The trial was conducted in accordance with all the procedural rules; it complied with everything the law stipulates. Based on the oral testimonies, the experts, the documentation and the military documents, the court – objectively evaluating the evidence of the prosecution and defence – issued a conviction for the crime of genocide. If the process was annulled, in our opinion illegally, it was annulled for procedural and not evidentiary reasons. We are satisfied that the crime of genocide has been proved. Of course, impunity is something that unfortunately we live with continually in our country.
Let’s revisit the most important moments of the trial. On the first day, a new defence lawyer appeared for Efraín Ríos Montt, Francisco García Gudiel, whose first action was a motion to recuse two judges. He was immediately expelled from the courtroom by judge Yassmín Barrios. Was this, in the end, what caused the annulment of the judgment and part of the trial? Could the judge have acted differently?
The court acted in conformity with the law. It heard the arguments of defence lawyer García Gudiel. There was no foundation to these arguments. The fact that he was expelled is within the disciplinary power of the court. This is something that doesn’t happen every day in Guatemala, that is true, but the court acted in conformity with the law.
But, knowing the result now, if you had been the judge, what would you have done?
It’s complicated. If the court has the power to do it, it can do it. To base the annulment on this is a matter of impunity.
Does that mean that the expulsion of García Gudiel was just a pretext?
Yes, probably. If it hadn’t been this, it would have been some other issue. Without a doubt this was the defence strategy. From the first testimony of General Ríos Montt on January 26th 2012, the defence presented a series of legal challenges in order to obstruct the trial. They were continually trying to avoid the case getting to trial. And that, I think, is the objective of the strategy, to undo the trial.
On April 4th, a witness, Hugo Ramiro Leonardo Reyes, accused the current president Otto Pérez Molina of having taken part in massacres in 1982. Did this witness’ evidence take you by surprise?
All the witnesses talked about what they knew of the facts. Each witness talked about what they had seen. I want to make something clear: The argument of AJR (the Association for Justice and Reconciliation, the other querellantes in the case) and CALDH is that these cases are against the military high commands of 1981, 1982 and 1983. The cases have always been seen from the point of view of strategic litigation.
What is strategic litigation?
Basically, it is focused on how these high impact cases can help our transitional justice. Our justice system is emerging from an armed conflict and the question is how we strengthen the rule of law. There has been no intention to pursue cases at a lower level than the high command. It was never our intention that the name of the President or other officials would come out.
So, you are not thinking of pursuing (President) Otto Pérez Molina.
The approach we have taken during the last 13 years is that the genocide cases are against the military high command.
And obviously, Otto Pérez Molina wasn’t part of the high command at that time.
No, neither him nor others.
Do you think that this witness’ accusation contributed to the difficulties that later arose in the case, and to the annulment of the judgment?
I would hope that that is not the case. Obviously, if this claim were proved it would be serious.
Immediately after that witness’ testimony, the testimony of another witness, Allan Nairn, a U.S. journalist, was cancelled.
We didn’t have much involvement in that. I think that it should be considered in relation to the trial. When the prosecution case was about to finish, legal challenges from the defence of Rios Montt started to have an effect. An appeal court, Appeal Court 3, found in favour of a defence appeal at the same time as another judge (Carol Patricia Flores, a pre trial judge) annulled the trial, in our view illegally. We started to see malicious legal challenges being presented so as to avoid a judgment being issued. For us it was important to conclude (the trial process). Not only this journalist but also other witnesses couldn’t give their testimony.
Was this a way to speed up the trial process?
Yes. It was important to get to the presentation of the defence case. Since the defence had been unable to prevent the trial taking place, its strategy was to prevent a judgment being issued. That’s why it was important to conclude (the trial.)
One day before the judgment was issued, Efraín Ríos Montt gave his statement. What did you think of it?
The General had a historic opportunity to say a lot more. He could have talked about this important phase for the country: What happened, how it was seen, why this reaction. Sadly, he didn’t do that. He could have told us so many more things that would have been really important for the history of this country.
Ríos Montt offloaded his responsibility onto his subordinates.
That was one of the ironies of the process. His defence was basically, “it wasn’t me, it was others, and I knew nothing about it.” Then they bring up the claim that it is a witch-hunt, when he himself is saying it wasn’t me, it was the lower ranks. I think that if he wanted to take that line of defence, he should have provided facts, information about what people of lower rank were doing at that moment.
When the judgment was issued, did you think you had won?
It’s not a question of having won. It’s a question of justice. The Guatemalan state, through the judiciary, settled a historic debt owed to the victims of the internal armed conflict. More than 30 years after the crimes, more than 13 years of asking for justice, there was, and is, an enormous debt. It’s not a matter of who wins, but that the state complies with its task of delivering justice in the country.
José Mauricio Rodríguez Sánchez was acquitted. Is that a partial defeat for the querellantes? Would you have appealed that decision?
It’s part of the process. In the view of the Public Ministry, General Rodríguez’s guilt was proved. It was the decision of the court to say it wasn’t. In relation to an appeal, it would have depended a lot on having the opportunity to analyse the judgment. But we were notified that Friday, and on Monday the judgment was annulled. If the process had gone through the normal stages, the possibilities of appealing could have been properly analysed.
On May 20th the Constitutional Court annulled the judgement and part of the trial in a split vote with 2 dissenting voices among the 5 magistrates. What is your analysis and to what extent was that a surprise for you?
For us it was a regrettable surprise. We are absolutely clear that the steps that our legal system provides for should have been followed. That is what appeals are for. Sadly, 3 magistrates of the Court annulled the process. The two dissenting votes are revealing, as they clearly saw it was an illegal decision. In the first place, the Constitutional Court cannot deal with procedural matters, and in the second place it based its findings on facts that never occurred during the trial. It really is deplorable. The judicial system had started to demonstrate to the people of Guatemala and to the world that it could deliver justice in our country, and that the system was changing, then… from heaven to hell in one week, from a country where justice was starting to work to a country that returns to impunity.
Judge Yassmín Barrios was severely criticised by the defence lawyers and conservative sectors. She was accused of bias, of conducting the trial in a rush, and above all, her gesture towards the Ixil people in the courtroom after the judgment was criticised. What is your opinion of the judge’s behaviour?
The court conducted the debate according to the law. Enough time was given to the witnesses and experts to testify, and to the lawyers to ask their questions. Some say the trial was rushed but you have to understand that the defence strategy was to slow it down. Obviously if one is trying to slow down the process, and this isn’t working, then one will criticise the court. As for the gesture, judges are human beings. It was a very complicated, very difficult trial. I don’t think it means the court was not impartial.
But that gesture could be interpreted in this sense.
Yes, it’s very much open to interpretation. But I’m sure that it did not affect the impartiality of the court.
What is your analysis of the work of the generals’ defence?
It was a defence aimed at halting the process more than a defence based on the evidence. For example, the defence witnesses didn’t add much to the trial as regards the facts. The court made its decision on the basis of the evidence presented. The defence was to obstruct the process.
Many of the questions for the defence witnesses and experts were objected to by the prosecution. In this way, for example, Gustavo Porras almost couldn’t say anything.
This has to do with the strategy one adopts during the trial and how the legal teams prepare beforehand. I think it is a completely valid trial strategy. If it is included in what the law says, it can be applied.
In his conclusions, César Calderón, the lawyer for Rodríguez Sánchez expressed surprise that of the 100 Ixil witnesses who testified, not one accepted having known or seen guerrilla fighters. He claimed that, given the presence of the guerrilla in that zone, it was impossible that all of them were telling the truth.
There were witnesses who said they had seen the guerrilla. It is not true that all the witnesses denied that. The other issue is that there is an intelligence report in Operational Plan Sofia, which said that there were 2 guerrilla fronts each with 30 members in the Ixil area: a total of 60 fighters. The population was 45,000 people; therefore it’s probable that many had not seen the guerrilla. That is what the witnesses were stating. Their accounts were very vivid and each one declared what they had seen. The defence also said that all the witnesses told practically the same thing, and that is because the Ixil people lived the same experience. Remember that there are studies that talk about 80% of the Ixil communities disappearing. The witnesses, without saying the same thing, more or less describe the same modus operandi, how they were pursued and bombed, the starvation, the lack of medicines, of shelter. An entire people suffered the same conditions, and for that reason the witnesses talk about the same facts.
During the trial, was there any mistake that you think you made?
It was a solid case that the Public Ministry prepared with the cooperation of the querellantes. An evaluation will have to be done to see what things can be improved, where things can be done better, but it was a very solid case that was presented. The evidence is so overwhelming that they threw the case out on a procedural issue.
Were there any threats against you, your lawyers or the witnesses?
As far as we know, not directly. There were incidents during the trial: unidentified people, who weren’t journalists, taking photos of the witnesses; comments overheard like, “here are the guerrilla.” The aim was to create a climate of polarization, army-guerrilla, left-right. But the trial isn’t something ideological, it is a matter of justice. Did the army exist? Yes. Did the guerrilla exist? Yes. Did both sides commit crimes, acts that they should not have committed? Absolutely. But we are talking about the civilian population, a population that suffered persecution, stigmatization of being seen as guerrilla members, and the human rights violations that were committed by the army.
What is your opinion of the press releases by CACIF and the statement of (President) Otto Pérez Molina that deny the genocide, even after the judgment?
They are deplorable. In relation to CACIF, as with any citizen, we have to be clear that, beyond ideological positions, the court weighs the evidence that is presented. It is very far-fetched to say that there was no genocide if they did not see the evidence that was lodged. In relation to the deplorable, unfortunate statements of Otto Pérez Molina, in his capacity as President he represents national unity. He must refrain from making these types of comments. In fact, there is a statement by the Human Rights Ombudsman to the effect that public servants must abstain from making this type of statement. That it was the President who said it can be taken as a form of pressure on the justice officials responsible for conducting the process.
One idea that has been expressed in conservative sectors is that, after the genocide trial, the next ones to be prosecuted will be the businesspeople that helped the military regimes, the journalists that didn’t speak out, or anybody who had close or loose links to the facts. Is that the aim of CALDH?
This is bogus. This is an argument for impunity. That is why we talk of transitional justice. It is impossible to have justice for everything that happened in the conflict. Sadly, we are talking about 200,000 dead, 40,000 disappeared, 50,000 displaced in Mexico and a million internally. There is no justice system that can bear the burden of all these cases. What we should be debating as a society is how far transitional justice can reach. The first step is that there is justice, then to see how far transitional justice can go.
How do you rate the role that the press played?
The press reported what was happening in the trial hearings. Maybe it should contribute to a healthier debate in society. Some groups, not all the press, but some groups got into an ideological game. The press can play a very important role conducting a debate in society about what happened during the conflict and not getting into the polarization that goes on. It’s not about division but about learning what happened and looking for guarantees that the crimes won’t happen again.
Could the trial have happened without the assistance and pressure exerted by the international community? I’m referring to the continuous presence of ambassadors and UN officials in the hearings, the help from international legal organisations, or foreign funding of CALDH and the AJR.
I don’t see it as pressure. I see it as follow up that they are giving to our country’s justice system. Many donations go directly to the justice system to strengthen it. Friendly countries want to help us have a functioning justice system. That is not equivalent to putting pressure on a court or on the parties in the case. It’s a matter of monitoring. International organisations are fundamental. Guatemala isn’t an island; it is not isolated from the collective of nations. There is a lot of interest around the world in our country improving, having an acceptable justice system, and the assistance of international organisations has been very important for us, the querellantes, in the sense of being accompanied in these cases.
But, doesn’t the presence of ambassadors and UN personnel exert a pressure or at least a counterweight to other pressures?
UN personnel fulfil a function of verifying the rule of law, that human rights are respected in the country. In the same way that they can verify a land eviction, or any type of human rights violation, they verify if the justice system works according to the law.
Will the prosecution of General Héctor López Fuentes go ahead; according to his defence lawyers he is suffering from terminal cancer, he has had several strokes and his mental capacities render him incapable of defending himself. Why not request a halt to this criminal prosecution?
We have not been able to approach the judge. The Public Ministry seeks the recusal of the (pre trial) controlling judge Patricia Flores and we support that request. But we have never denied humanitarian issues. We understand that if a person is not capable then he cannot be put on trial. This was the case with General (Óscar Humberto) Mejía Víctores who obtained a temporary suspension of the process and we did not oppose that. When a judge is appointed to the process (against López Fuentes), and the reports of INACIF can be seen, the pre trial court will make a decision on that basis.
Plaza Pública revealed that the new judge in charge of the trial wrote a Masters thesis on the applicability of the crime of genocide in which she appears convinced that it did happen at the start of the 1980s, during the period of Efraín Ríos Montt’s rule.
Once the process is in her hands, it is for the judge to give her opinion. On that basis we will be able to state our position on this issue. It is expected that she will present her reasoning. I think that this definitely will be used as a basis of a recusal motion in the sense that the defence strategy – which I don’t think is going to change – is to avoid a trial.
Why not present the genocide case before “international justice”?
We did not resort to the Inter-American system because our belief was that the national justice system can work. We want the national system to deliver justice. Today, we have partial justice, so to speak. A judgment was delivered, but impunity annulled it. I think it’s necessary to reconsider this together with the victims, if we have to take the process to a higher court. Whether or not to take the case to the Inter-American system is a decision that must be taken by the victims.
For the witnesses, participating in the hearings involves a very great strain. They often come from very remote villages and to remember what they lived through probably amounts to considerable suffering. Will you manage to convince them to testify once again before a justice system that they probably distrust?
It’s those same victims who have given us the encouragement to continue with the search for justice. They have always said they wanted to achieve justice. It is a strain, but it is also very restorative for the witnesses, being able to appear before a judge and recount what happened during the conflict. Thousands of victims are not going to have the opportunity to sit before a court and ask for justice. As to convincing them or not, each witness is free to make their own decisions. Many of them would appear again to tell what they lived through. Among them there is a great fortitude for justice. The key thing is: what guarantees can the justice system give them now if they testify again, will the decisions of the courts be respected and not be annulled once, twice, three, four, five, six times? What guarantees are there that procedures will be respected?
And what guarantees are there? Do you believe in the Guatemalan justice system?
That is our gamble. We need to believe that the justice system can work. If one loses that hope, then the country is defeated. If our justice system doesn’t work, it is very difficult to think of being a democratic country, a free country.
 After the judgment had been read, the many Ixil people in the courtroom sang and cheered. Judge Barrios put her hand to her heart and nodded her head toward the audience.
 The Coordinating Committee of Agricultural, Commercial, Industrial, and Financial Associations.
 Guatemalan National Forensic Sciences Institute