Congressman Ovalle and the CREOMPAZ Case: Congressional Immunity or Impunity?

Retired military officer Edgar Justino Ovalle was elected to Guatemala’s Congress last September on the ticket of the National Convergence Front (FCN), a party he founded along with other military officers, in 2004. That saved him from being arrested on January 6, alongside 14 other high-ranking military officers, in relation to the CREOMPAZ case, which Attorney General Thelma Aldana has described as “one of the largest case of forced disappearance in Latin America.”

As previously reported, eight of those 14 officials will face a public trial for their role in enforced disappearance and other crimes against humanity in relation to this case. Ovalle, on the other hand, was sworn in as a member of Congress on January 14. This was despite a request by Attorney General Aldana to the Supreme Court of Justice (SCJ) to lift his immunity, so he could be prosecuted for his role in several of the crimes committed at Military Zone 21 (MZ21) in Cobán, Alta Verapaz, now known as CREOMPAZ.

Since 2012, investigators have exhumed the remains of nearly 600 people —90 of them children— buried in clandestine mass graves at the MZ21, which served as a center of center of military coordination and intelligence during the counterinsurgency war. DNA testing has identified approximately 150 of the victims who were killed or disappeared by the military in the 1980s. Many of the bodies were blindfolded, bound, or dismembered. The SCJ ruled just two weeks later against Aldana’s request, saying it was “spurious” and that it made “no specific mention of [Ovalle’s] participation in any criminal activity.”

The Attorney General’s Office has continued its efforts to launch impeachment proceedings against Ovalle. It filed an amparo (a protective measure similar to a writ of habeas corpus) against the SCJ’s ruling before the Constitutional Court, arguing that the SCJ decision limited the state’s obligation to criminally prosecute grave crimes, while also obfuscating the state’s obligation to guarantee victims’ right to access justice.

In April, a provisional ruling from the Constitutional Court upheld the SJC decision. The Attorney General’s Office and the civil parties were invited to present their oral arguments before the Constitutional Court on July 27, 2016, before it emits a definitive ruling on the matter.

Who is Edgar Justino Ovalle?

Edgar Justino Ovalle is a retired military official who is considered to be part of the “old guard” of military officers connected to the counterinsurgency operations of the 1970s and 1980s. During this period, according to the Guatemalan Commission for Historical Clarification, 200,000 people were killed, 93 percent at the hands of the military.

Ovalle, who graduated with the class of 1971 from the Polytechnic School and studied at the School of the Americas, is a founding member of the Guatemalan Association of Military Veterans (AVEMILGUA), an organization that denies military involvement in human rights violations and has actively rejected efforts to hold military officials accountable for such abuses. In September of last year, Ovalle was elected to Congress with the National Convergence Front (FCN), of which he is co-founder and general secretary.

The FCN was founded in 2004 by retired military officials connected to the counterinsurgency operations of the 1970s and 1980s. Current President Jimmy Morales, a former comedian who was elected to office on the FCN ticket, is believed to rely heavily on Ovalle’s advice. According to some news reports, Ovalle himself chose Jimmy Morales, a political outsider, as the FCN presidential candidate, presumably because the military “old guard” needed a fresh face to better represent its interests.

Ovalle and CREOMPAZ

The July 27 public hearing provided the Attorney General’s Office as well as the civil parties to the CREOMPAZ case an opportunity to present their arguments as to why the Constitutional Court should overturn the SCJ decision and lift Ovalle’s immunity.

Public prosecutor Hilda Pineda argued that the SCJ decision was mistakenly based on the notion that the CREOMPAZ case was primarily based on the Plan de Sánchez massacre, which occurred in 1982, and that Ovalle was not present at MZ21 during that year. In her arguments before the Constitutional Court, Pineda clarified that the Plan de Sánchez massacre was a precedent to the CREOMPAZ case, but the case involved numerous criminal acts between 1981 and 1987. (In 2012, five former civil defense patrolmen were convicted for the 1982 Plan de Sánchez massacre, in which over 250 Maya Achí were killed. Witness testimony that many of those killed were buried at MZ21 led the Attorney General’s Office to initiate exhumations there in 2012.)

Pineda explained that her office was investigating a number of other crimes in relation to the CREOMPAZ case, including several that occurred in 1983, when Ovalle was an intelligence and operations official at MZ21. Pineda affirmed that her office seeks to charge Ovalle with responsibility for the enforced disappearance of six individuals who were exhumed from MZ21 and who were positively identified using DNA. Twenty-nine other crimes have been identified by the Attorney General’s Office during Ovalle’s tenure at MZ21. These facts, Pineda argued, prove that there is sufficient cause to merit Ovalle’s impeachment.

Declassified documents obtained by the National Security Archive demonstrated that, between January and August of 1983, Ovalle was a major and a member of the Chief of Staff of MZ21. According to the Attorney General’s Office, Ovalle served first as an operations officer (“S3”) between January 1 and April 15, 1983, and later as an intelligence officer (“S2”) between April 16 and August 31, 1983. As Nómada writes:

The Operations Directorate (D3; before 1983 G3), gave general orders, and operations officers like Edgar Ovalle gave orders about how to mobilize, who should do what, why and where mobilize, conducted trainings and distributed weapons, and reported back to the commanding officer. They were the link between the Army High Command and field operations, between the intellectual and operational.

Declassified documents also reveal that Ovalle was in charge of operations in the Ixil region between September 1981 and September 1982, during which some of the worst massacres of the Guatemalan civil war were committed.

Immunity or Impunity?

The civil parties to the CREOMPAZ case argued further that access to justice is a right of all victims of the internal armed conflict and that its exercise is a critical element of the rule of law. Mechanisms that provide immunity should not be allowed to protect those accused of war crimes to escape justice, they concluded.

This argument was supported by a friend of the court brief (amicus curiae) presented by international organizations at the July 27 hearing. The brief states that when mechanisms such as congressional immunity enter into conflict with other obligations of the state, such as the obligation to guarantee the access to justice for victims of crimes against humanity and other grave human rights violations, the former must cede to the latter, given the international obligation of states to investigate, prosecute, and punish grave human rights violations. The brief examines the nature of congressional immunity and asserts that “the provision of congressional immunity cannot be used by the Guatemalan state to impede the exercise of the [victims’] right to access justice.”

The Guatemala-based Pro-Justice Movement (PJM) also raised general concerns about the abuse of congressional immunity provisions. According to a study conducted by the organization, between October 2014 and July 2016, of the 28 requests presented by the Attorney General’s Office to the Supreme Court of Justice to lift the congressional immunity of the same number of congressmen, 24 remain unresolved, despite a 60-day deadline for ruling on such requests. This raises the concern, according to PJM, that congressional immunity has become a mechanism that guarantees impunity and undermines the rule of law.

Ovalle did not attend the July 27 hearing, saying he wanted to “avoid a circus.”

Nómada reported in April that the U.S. Government annulled Ovalle’s visa to the United States.

Jo-Marie Burt
 is an associate professor of political science and director of Latin American Studies at George Mason University. She is also a Senior Fellow at the Washington Office on Latin America (WOLA). This report was prepared with the assistance of Paulo Estrada, human rights activist, archaeology student at San Carlos University, and civil party in the Military Diary case, and Ana Escobar, human rights activist, documentarian, and anthropology student at San Carlos University.