International Justice Monitor

A project of the Open Society Justice Initiative

Judging Rios Montt in the Face of Obstacles – Interview with Judge Yassmin Barrios

(This interview was conducted by Blanche Petrich of La Jornada.)

In a middle-class neighborhood of Guatemala City, the nation’s capital, three National Police patrol officers are stationed permanently in front of a black metal entryway. They guard a judge, Yassmín Barrios, who this past May 10 was called on to issue the following ruling, after sounding the proverbial gavel in a courtroom:

“That the defendant José Efrain Ríos Montt is responsible as the perpetrator of crimes against humanity and genocide, committed against the life and safety of civilian residents of the villages and hamlets located in Santa María Nebaj, San Juan Cotzal, and San Gaspar Chajul. For this crime he should be sentenced to 30 years in prison without parole.”

Despite the security detail outside, her house is small and very modest. There, with her mother, lives the judge who holds a PhD in jurisprudence, and who ruled on the complaint concerning the events of 31 years prior in the Ixil region of Guatemala. This was a landmark trial: never had an officer of the court recognized the crime of genocide and handed down a sentence of such weight to a former head of state.

But it was also a fleeting sentence: 10 days later, with the support of three judges and the dissent of two others, the Constitutional Court (CC), the highest court in Guatemala, overturned the ruling, alleging procedural errors.

Many experts in criminal law argue that the CC exceeded its powers and that its decision was illegal. But a sigh of relief was heard in the upper echelons of economic, political and military power, as their impunity had been restored.

La Jornada: This was nothing less than the first genocide conviction handed down by a national court against a former head of state. Were you doing something historical at that moment?

Yassmín Barrios: I was simply doing justice.

LJ: That day…

YB: I left home very early, as always, feeling very aware of my actions.

LJ: Did you prepare your speech?

YB: No, because the criminal code establishes a procedural order to our work, and judges do not deliberate until after closing arguments. It was only at the moment when I struck the gavel, bringing the session to an end, that my fellow judges (Patricia Bustamante and Pablo Xitumul) and I withdrew to chambers to deliberate in secret. From 9:00 AM to 4:00 PM we drafted the ruling, which we read in a condensed form.

***

From the tiny room – ceramic elephants on the center table, with pink crochet doilies on the armchairs, plastic flowers on a private altar in the dining, room and pale green walls covered with her diplomas – we hear from the kitchen that the water is ready for tea. The judge gets up to make it.

Faced with the partisan harassment of the traditional media, who attacked her from all possible angles, Yassmín Barrios withdrew. She recused herself from continuing to preside over the case and refused dozens of requests for interviews from national and international journalists, up until now, when she spoke extensively with La Jornada.

***

LJ: Did you feel defeated after the ruling was overturned, which was the culmination of a 15-year process for the Ixil people to reach a national court?

YB: No, not at all. The trial, as a whole, was a breakthrough for Guatemala, especially for its judicial system. Amid all the bombardment and the media campaign that took place, we managed to demonstrate that Guatemala does indeed have an independent legal system, that we have committed, responsible, principled judges, and we have knowledge of the law.

LJ: Are you satisfied with the fact that in this country has had the opportunity to issue a conviction for genocide such as yours: that the general spent time in a jail cell, even if it was only for a weekend?

YB: No, it’s not about personal satisfaction. One must look at it from another point of view. We had the opportunity for victims to be able to take action within the process. The constitutional guarantees of the accused were respected. And on May 13, after sentencing, a hearing was held for the purpose of victims’ reparations; the court proceeded to analyze the petitions from the complainants and give them justice due. And I must say, they did not call for economic restitution; rather, their petitions were much more basic.

We have shown that Guatemala, with its economic and political shortcomings, has the ability to hold a hearing that was observed by many law experts worldwide, who certified that the court satisfied the stringent standards of justice.

LJ: What’s next? When do the proceedings resume?

YB: We don’t know; that’s one of the issues that the Constitutional Court left hanging.

LJ: You have been recused from continuing to hear the case. Why is that?

YB: The [Constitutional] Court ordered that the trial be annulled from April 19 [2013]. We cannot accept illegal orders. According to our legal system, that would not be possible, because a ruling has already been issued; we cannot go back in time, to pretend that nothing has happened. It is unethical and improper, and it is not procedurally doable.

LJ: In the new phase of the trial, if it ever manages to resume, will the testimonies the victims have already given be admitted, or will they have to travel from their villages to the capital again to repeat their statements?

YB: It’s sad, but I think it the victims would have to return for one reason: the judges who are seated on the court cannot pass judgment if they have not listened to the people. The Court overturned everything.

LJ: The defense attorney of former dictator Ríos Montt, Francisco García Gudiel, threatened you in the middle of the trial that he would not rest until he sees you behind bars. How do you see your future unfolding?

YB: I see myself working, holding hearings, which I quite enjoy. I am currently an alternate judge for the Supreme Court, and I do not know, but perhaps it’s God’s plan that next year I may be seated on that court.

LJ: Meanwhile, the media campaign against you continues. They criticize your hairstyle, they make sexist comments, they say you got your degree at night school…

The judge interrupts with amusement:

YB: That’s not true. I graduated with honors, with the highest grades possible. I did the same with the two masters degrees I have, one in criminal law and one in constitutional law. And again with my PhD. And as for the beauty salon thing … well, it’s just that I like it that way, natural.

 

The Gerardi case: her encounter with history

One night before starting the trial for the murder of Bishop Juan Gerardi, in 2001, the house of Judge Barrios was attacked with grenades. One exploded in the courtyard of the small residence.

YB: We were here, at this table. We were about to eat dinner, my mom and I; it was a little past eight o’clock. We heard a terrible sound, the smell of gunpowder. It was an attack.

It was a night of little sleep.

YB: I ran to get my rosary, I prayed to my beautiful statuette of Jesus to not let anything happen to us. I called the police and asked for help, I called the press. I was furious. I thought: if they’re going to kill me, let them kill me, but first they’re going to hear me out. And the next day I showed up on time at the courtroom, for the hearing.

If they intended to intimidate the judge of one of the emblematic crimes of those years–Gerardi had filed just days before the report of the Recovery of Historical Memory Nunca más [Never again] about the atrocities committed against civilians during the war–they did not achieve their goal. The trial stayed the course, and at the end the judge ruled: 30 years in prison against a priest and two soldiers accused of murdering the bishop and human rights advocate. The culmination of this process was tragic. First the Court of Appeals tried unsuccessfully to quash the judgment, which was rejected by the Supreme Court. Then the sentence was reduced to 20 years in another court. Subsequently, 10 witnesses or participants in the murder plot were killed, including one of the persons who had been sentenced, Sergeant José Obdulio Villanueva, who was found guilty of planning the execution out of the military intelligence office of the Army Chief of Staff; he was beheaded in a prison riot. Currently the only one left in prison is Captain Byron Lima Oliva Juan, who is a close compatriot of the current president, General Otto Pérez Molina.

That trial was, according to Judge Barrios, her “date with destiny.” Her life changed. She had to sell the little car she used to come and go, and she had to accept the company of bodyguards everywhere she went; she lost her independence. But above all, she learned the history of her country.

YB: It really was from that point on that I started to learn the well-documented things that happened during the war. And I understood deep down that peace will not be achieved if there is no justice.

LJ: If you paid a high price for being a judge in the Gerardi case, what did you think when two years later you were put on the bench for the trial of Ríos Montt, which is much more significant?

YB: I started thinking about the consequences, because I believe that a judge must be free from bias and worries when it comes time to make a ruling. I also didn’t make a point of fixating on the consequences when I sat on the Myrna Mack case, the one with the murdered Salvadorans from Parlacén, the one with the girls from Sacatepéquez, the Dos Erres one (the massacres in the Petén in 1981), and the many drug cases, including several Zetas from Zacapa in 2011.

***

Iris Yassmin Barrios always attended public schools. She worked her way through law school at the University of San Carlos. She didn’t come from an environment of human rights struggle, and she didn’t directly experience the effects of armed conflict that unfolded during her student years.

She entered law school in precisely the year that General Ríos Montt seized power in a military coup. While in rural areas the army carried out their “scorched earth” policy, Yassmín lived in the capital, “as if in a bubble,” she says. At the university, “I didn’t participate in any movement, since it didn’t involve studying.” The truth is that a whole generation of student leaders and critical scholars had been liquidated by the military governments, that of Ríos Montt and his predecessors. Her student years were “silent, withdrawn, and here in the capital there was a great deal of press censorship. The war was far away…[I]t was a pity that we found out much later what was happening.”

However, the paradigmatic crimes of that war passed through the courts where she served as a judge. Not only the case of Bishop Juan Gerardi, but also some from the REHMI report, the case of the murder of anthropologist Myrna Mack.

YB: I left the university when they were just beginning to learn about the human rights reports. And I passed the bar exam in the first selection procedure for bench judges shortly after the signing of the peace agreements. My position is based on merit, and fortunately I can act, think, and be consistent.

Then Ríos Montt crossed her path

LJ: How did the case of Ríos Montt reach your hands?

YB: In early February, the case went to trial court A, High Risk, where I work.

***

The two military men accused by the attorney general, José Mauricio Rodríguez and Ríos Montt himself, challenged the appointment of this judge, arguing that she had previously been known for the case of the Dos Erres massacre, in the Petén. But the appeal was not accepted, because it involved different acts, people, and places.

After court proceedings began on March 19, the defense chose to attack the judge as a strategy. Currently, Barrios has more than a dozen pending requests for recusal.

But it was the first one that, in the end, served to overturn the landmark judgment. The incident occurred on the first day of arguments, when Ríos Montt’s named attorneys did not appear, and instead the attorney Francisco García Gudiel appeared, without proper registration – a lawyer with a long history of service to the military. He demanded the expulsion of Judge Barrios, alleging personal conflicts. The prosecutor expelled him from the room. It was the first procedural blow to hinder the debate.

For one month, despite the obstructive practices of the defense, the public hearings continued in an overflowing courtroom, broadcast live around the world. Here more than one hundred survivors of the massacres in the Ixil region filed through under the distracted gaze of the elderly general (Ríos Montt is already in his eighties), witnessing the consequences of the military orders Ríos Montt gave to exterminate them: children and elderly hacked to pieces, girls and women raped to death, summary executions, hearts torn out, piles of bodies, villages burned … two percent of the Ixil population were exterminated in those years, while the rest were displaced and persecuted. They presented experts in forensic anthropology, statistics, psychology and sociology, military law, history, anthropology. Classified military documents from that era were presented as evidence. The genocide was described as fueled by the racism inherent in Guatemala’s upper echelons of power.

On April 18, the proceedings, which were already swaying public opinion, came to an abrupt halt. A lower court judge, Carol Flores, managed to temporarily suspend the trial, saying there were earlier constitutional appeals that had not been completed. After struggles in various courtrooms, Judge Barrios managed to resume the trial on May 7, and it entered into the phase of concluding arguments.

YB: That was one of the most beautiful moments, because it demonstrated the independence of the judiciary; we would not abide by illegal orders and we did not vacate the proceedings.

The genocide exposed to the world

LJ: On a personal and professional level what did you get out of these proceedings?

YB: In addition to a sense of peace, a lot of things. It was a trial of great depth. Culturally, it gave the Ixil people an opportunity to come forward and assert their rights. The mere act of appearing in court, to stand up and speak, to say what they had been denied for so many years – it was like a release, especially for the women. At that time I could not say or express my feelings, because of my duty, but I became aware of that deep anguish.

It became possible to capture the eyes of the world, because genocide is a major crime for all humankind. It was an important trial for people in the legal field and for laypeople who followed the arguments, for scholars, for students of law and history, for the general population.

It had a major impact on jurisprudence because so many procedural incidents and obstacles took place, which afforded an opportunity to expand our criteria and provide various solutions, and none of this took place behind closed doors but in public hearings.

The expert reports were of the highest quality. Rarely in court do we have the opportunity to enjoy such a select group of experts, with such invaluable knowledge. Forensic anthropologists, psychologists and sociologists, experts in racism, in victim psychology. What was achieved was to place before the court a period of Guatemalan history – March 1982 to August 1983 – to put it on trial … just a small piece of a 36-year armed conflict.

A minor detail from May 10 continued raising a ruckus in the local media. Local television repeated incessantly the image of the judge shouting orders, with no microphone, to prevent the flight of the convicted general.

LJ: Was that dangerous?

YB: Yes. I was responsible for the safety of the courtroom. When I stood up I saw how they were trying to get him out of the room. Then I gave orders to stop it. But since they turned off my microphone, I had to shout. I said: you cannot leave until those responsible for moving you to the prison arrive.

LJ: When the police took Ríos Montt into custody, now convicted, did that end your role in the process?

YB: No, we had five days to draft and issue the full sentence, because at that point we had only read the legal grounds for the ruling. Everything was included in the 718 page judgment.

We delivered it on May 17 at 1:00 PM, by the deadline. And on Monday, May 20, in the evening hours, the Constitutional Court overruled it.

LJ: Did you see this [Constitutional Court decision] coming?

YB: Honestly, no. They were telling me this would be the case, but I continue to believe in justice. And I still judge people based on my own manner of operation, which leads me to believe that others are honest and act in conformity with the law. So it was a surprise. I respect the decision of the Constitutional Court, but I do not share it.

LJ: Were the judges pressured?

YB: I can’t say, but the overturning occurred after three days of sessions conducted by the CACIF [the Coordinating Committee of Agricultural, Commercial, Industrial, and Financial Associations], which is the group that holds the political and economic power in our country.

Minutes after our judgment, this group [CACIF] protested against it, in the press and on social networks. One thing is related to the other. The vote [of the Constitutional Court] was three [judges] to two [judges].

***

Despite the wealth of information that came to light during the trial, one fact is still resonating in the media as a major mistake by the judge in the most emblematic case the country has seen in its history, when she – standing in the face of the applause, shouts of thanks and looks of gratitude from the indigenous people in front of her – merely nodded her head, stood up and crossed her arms over arms over chest, like a big embrace.

The defense filed a suit against her, claiming that this gesture implied her partiality; that suit remains pending. Yassmin laughs: “to greet and respond when someone thanks you is a mere courtesy, right? It isn’t illegal.”

This interview was published by La Jornada on July 31, 2013.