On March 1, 2018, the long-awaited trial in the critical Molina Theissen case opened. Five retired senior military officers face charges of crimes against humanity for the illegal detention, torture, and rape of Emma Guadalupe Molina Theissen, and the enforced disappearance of her 14-year old brother, Marco Antonio Molina Theissen, in 1981.
The plaintiffs allege that the disappearance of Marco Antonio was an act of revenge to punish the Molina Theissen family after Emma, a political activist, managed to escape from the Manuel Lisandro Barillas military base in Quetzaltenango, also known as Military Zone No. 17 (MZ17), where she was being detained. The Inter-American Court of Human Rights found the State of Guatemala responsible for the disappearance of Marco Antonio in 2004 and ordered the investigation, prosecution, and punishment of those responsible. With the opening of the trial in Guatemala City, the family’s search for justice is now within reach.
The retired military officers on trial are Benedicto Lucas García, the former head of the Army High Command (who is also charged in the CREOMPAZ case); Manuel Antonio Callejas y Callejas, the former director of intelligence of the Army High Command; Francisco Luis Gordillo Martínez, former commander of MZ17 at the time of the alleged crimes; retired colonel Edilberto Letona Linares; and retired major Hugo Ramiro Zaldaña Rojas. At the time of the crimes, the latter two were deputy commander and intelligence official of MZ17, respectively. (For more background on the accused, see our briefing paper on the case.)
The case is being heard by High Risk Tribunal “C”, with Judge Pablo Xitumul presiding, alongside Judges Eva Marina Recinos Vásquez and Elvis David Hernández Domínguez.
Last Thursday, the court heard opening arguments and incidents and called two of the defendants to testify. In the course of the interrogation of Gordillo Martínez, the Attorney General’s Office presented secret military documents that were seized from his home at the time of his arrest in 2016, which they say demonstrate that Gordillo was fully aware of Emma’s detention in MZ17.
Plaintiffs’ Opening Remarks: Crimes Against Humanity, Aggravated Sexual Assault, and Forced Disappearance
The trial began with Judge Xitumul recognizing all the parties to the trial, including the mother of Emma and Marco Antonio, Emma Theissen Álvarez de Molina, who is a civil party to the proceedings. Once all parties were recognized, Doña Emma and her daughters Ana Lucrecia and María Eugenia, who will all be called to testify, left the courtroom.
Julio Anaya Cardona, defense attorney for Callejas y Callejas, petitioned the court to close the hearings to the public, alleging that because the case involved sexual violence, it would be retraumatizing for the victim to have the case heard in public. Judge Xitumul summarily rejected this request, confirming that it would be open to the public. The lawyer then specifically questioned the presence of independent media outlets, which he criticized for taking photographs of the accused and their attorneys and publishing them on social media. He urged the court to verify press credentials and expel those who do not represent “real” media outlets. The judge confirmed that the press had been duly accredited and rejected the effort to restrict press access to the proceedings.
The court then proceeded to hear the opening remarks of the parties, starting with Erick de León, prosecutor in representation of the Attorney General’s Office. De León told the court that the Attorney General’s Office will prove that the five military officers on trial are guilty of crimes against humanity and aggravated sexual violation against Emma Molina Theissen; and that Lucas García, Callejas y Callejas, and Zaldaña Rojas are guilty of the enforced disappearance of Marco Antonio Molina Theissen.
De León stated that the accused belonged to two different structures of the army that are implicated in the crimes that are the subject of these proceedings: the Army Chief of Staff (Estado Mayor General del Ejército) and Military Intelligence, both of which are organized based on the principle of command authority. The Chief of the Army High Command (Lucas García) gave continuity to existing orders to establish military checkpoints to detain suspected subversives. These checkpoints led to the personnel of MZ17 to detain Emma Molina Theissen, who was found in possession of documents pertaining to an illegal organization, the Patriotic Worker Youth, on September 26, 1981.
De León said this makes the commander of MZ17 (Gordillo) responsible for Emma’s detention. Gordillo was aware that Emma was introduced to MZ17 through the daily reports that the second commander (Letona Linares), and through the reports of the results of the interrogation of Emma that were carried out and supervised by the MZ 17 intelligence official Zaldaña. During the time that Emma was detained, she was under Zaldaña’s control. After Emma’s escape on October 5, 1981, Zaldaña reported it to his superior officers.
The second structure, Military Intelligence, was activated from the moment that Emma was under Zaldaña Rojas’s control, said de León. Zaldaña directed the interrogation sessions of the victim, using army officials dressed in civilian clothes. These officials tortured and sexually violated Emma. When she escaped, Zaldaña informed his superiors about the results of the interrogation during the nine days she was under his power. De Leon said that the intelligence channel was directed by Callejas y Callejas, who at the time was very feared in Guatemalan society.
According to de León, the defendants violated the Geneva Conventions and the sexual violence committed against Emma should be considered aggravated sexual violence. Furthermore, he said they are criminally responsible for their direct involvement in the crimes because they induced and cooperated in their execution.
Alejandro Rodríguez, the civil party lawyer in representation of Emma Molina Theissen, complemented the prosecutor’s opening remarks. Rodríguez noted that Emma is one of the few survivors of the system of clandestine system of detentions organized by the army in the context of the counter-insurgency war.
Rodríguez argued that eliminating the internal enemy was a key objective of the conter-insurgency war, based on the Doctrine of National Security, and was applied in military bases and zones throughout the country. The concept of internal enemy included not only suspected Communists but any individual who was critical of the military government, or just demanding their basic rights. During this time, the army established clandestine detention centers, torturing victims for information.
Rodríguez agreed that the chain of command was operative during the counter-insurgency policy and said he would present witnesses who will testify that they observed Emma being driven around town in vehicles that belonged to Military Intelligence, so that she could help identify other suspected subversives. Emma refused to comply, Rodríguez said, and this led the military officers to punish her with torture and sexual violence.
The torture was intended to destroy Emma’s personality and to force her to become a collaborator. These methods, which included depriving her of food, physical beatings, and other forms of torture, such as electric shocks and sexual violations, are prohibited by the American Convention on Human Rights. Rodríguez stated that Emma would have been extrajudicially executed if she had not escaped. In response, Zaldaña Rojas, devised an operation to recapture her, which culminated in the raid on the Molina Theissen family home in Guatemala City the following day and the forced disappearance of Emma’s brother.
Rodríguez argued that the defendants organized what the International Criminal Tribunal Court for the former Yugoslavia has called a joint criminal enterprise to repress and annihilate political opponents. In the present case, he stated, the Army Chief of Staff (Benedicto Lucas García), organized and directed a criminal enterprise in which each of the co-accused acted under a common purpose, which was the Doctrine of National Security through the strategy of counter-subversive warfare. Rodríguez stated that the plaintiffs will demonstrate, through the testimony of former miltiary intelligence officers, that the counter-insurgency policies involved training army personnel in techniques of torture and sexual violation. Rodríguez added that he will provide evidence that General Callejas y Callejas traveled to Argentina to request military assistance and training, which resulted in a series of exchanges between both armies.
Marco Antonio, a 14-year-old student, is one of an estimated 5,000 children who were forcibly disappeared during the internal armed conflict, said David Sánchez del Cid, civil party lawyer representing his mother, Emma Theissen Álvarez de Molina. He was a child who had no political affiliation and did not represent a threat to the state, but because his family were known political opponents of the military government, Marco Antonio was considered an internal enemy too. The operation that was designed to recapture Emma Molina Theissen and resulted in the forced disappearance of Marco Antonio could not have taken place without the authorization and consent of the head of the Army Chief of State, Benedicto Lucas García. Nor could it have been carried out with the advisory role of the Director of Military Intelligence, Manuel Callejas y Callejas, or with the information provided by intelligence official Zaldaña Rojas.
On the same day of Marco Antonio’s disappearance, his mother Emma Theissen Álvarez de Molina and other members of the family filed writs of habeas corpus and complaints before the National Police, searched for him in jails, barracks, and military bases, and met with senior army officials, including Colonel Gordillo Martinez, to try to locate him. All the officials they consulted denied and concealed the forced disappearance of Marco Antonio Molina Theissen.
Increasing political repression in 1984 led Doña Emma to go into exile with her husband and one of her daughters. From exile, she continued her search for justice, including a successful 2004 case at the Inter-American Court of Human Rights. (For more on this case, see our background briefing.)
The Prosecutor General’s Office (PGN), which is separate from the Attorney General’s Office, is charged in the case for its responsibility as a third party. In court, a PGN representative asserted that Guatemala had fulfilled the terms of the 2004 IACHR judgement, including payment monetary reparations to the Molina Theissen family. The trial will judicially test this controversial claim.
Defense Opening Remarks
The defense lawyers for the accused presented their opening arguments in turn. Each of them rejected the charges presented by the Attorney General’s Office, some even questioning its impartiality. Defense counsel for Gordillo Martínez, Alejandro Arriaza, began by saying that there are always victims in any armed conflict, and questioned the public prosecutor’s presentation of the facts as partial and limited to the testimony of the victims. He asserted further that the proceedings were flawed, as they were the result of directives put in place at the time Claudia Paz y Paz was Attorney General (2010-2014).
Defense counsel for Letona Linares said that his client had no knowledge of the events being discussed in this trial. He accused Emma Molina Theissen of criminal acts, which he said raises fundamental questions about the credibility of her testimony. He said that there are no medical reports to substantiate the victim’s claims that she was tortured and sexually abused, only her testimony.
Julio Anaya, defense counsel for Callejas y Callejas asserted that his client did not have chain of command authority and was only an advisor. He also accused the Attorney General’s Office of fabricating the charges and manipulating the law.
Benedicto Lucas García is represented by his son, Jorge Lucas Cerna. He began by stating that the Doctrine of National Security did not exist and that the term ‘internal enemy’ is used by socialist theorists, but was not used in Guatemala in 1981. He also asserted that there is not a single military or operational plan that bears his client’s signature. Lucas Cerna said that the Attorney General’s Office is misrepresenteing the chain of command, and that the head of the Army Chief of Staff did not give orders but only transmitted orders of the defense minister. Lucas Cerna warned the court that the plaintiffs use terms like Joint Criminal Enterprise to confuse it.
Incidents
Once opening arguments were finished, Judge Xitumul asked if any of the parties had arguments on procedural matters to report. Defense attorney for Gordillo Martínez, Alejandro Arriaza, petitioned the court to allow the defendants to participate in the proceedings via videoconference due to their age and declining health. Arriaza told the court that his client was injured by the handcuffs he is forced to wear when transferred to the courtroom. Gordillo raised his hands, showing a bloodied bandage around one of his wrists.
Judge Xitumul rejected the petition, but he did order a medical exam of all five defendants to determine the status of their health so that the court could make an informed decision on the matter in the future. Arriaza then became disruptive, leading Judge Xitumul twice to order the defense attorney to cease interrupting the proceedings and to respect the court’s decisions.
The First Defendants Are Called Before the Court
After a one-hour recess for lunch, the court proceeded to call the defendants to testify. Hugo Zaldaña Rojas pled not guilty and refused to make a statement or submit to interrogation by the prosecution.
Gordillo Martínez gave a brief statement in which he also pled not guilty and denied any knowledge of the events. “The case did not exist, I had no knowledge of it, nor did I receive superior orders, nor did I impart orders of this nature, nor did I allow such things to happen,” he said. “I have little to say. I am innocent. I had no knowledge of these events. I did not receive superior orders nor did I impart them, nor did I tolerate such acts; on the contrary, [our] conduct was always in defense of the population and service to the community.”
Gordillo continued, saying that his name “had been internationally stained as a human rights abuser, as a dangerous person, and I have suffered both moral harm and economically. My family life has been altered, my family suffers a high level of stress.”
He then launched into a long attack on international organizations, including the Open Society Foundations, the Ford Foundation, and the Center for Justice and International Law (CEJIL). He claimed that these entities were manipulating the family, financing the case, and profiting from the proceedings. CEJIL represented the Molina Theissen family before the Inter-American Court of Human Rights. (International Justice Monitor is a project of Open Society Justice Initiative, which is a program of the Open Society Foundations.)
“We have already been convicted,” Gordillo continued, “The trial is already prepared, the sentence is prefabricated, because the people who are directing these trials are interesting in convicting us—the objective is the army—because this brings them more money.” He concluded by insisting on his innocence.
Before allowing the prosecutor to interrogate the defendant, Judge Xitumul responded to Gordillo’s statement questioning the impartiality of the court by stating emphatically that the trial court judges are impartial and, as is their duty, will determine judgment objectively, based on the evidence and the law. He also gave assurances that the court has received no external pressure from any source, and that if this were to happen, he would denounce it.
Prosecutor Erick de León proceeded to interrogate Gordillo, who then declined to answer any questions.
Judge Xitumul then instructed the prosecution to proceed with questioning. De León presented a military document marked “secret” that was one of several seized from Gordillo’s home when he was arrested in January 2016. Gordillo told the court that he was tired —“my head can’t take any more of this”— and did not want to answer questions. However, the court told him that because he had agreed to make a statement to the court, he would have to submit to cross-examination and instructed the prosecutor and the civil party lawyers to proceed with their questions.
The prosecutor continued asking about the document, a report directed to Gordillo as commander of MZ17. It described a visit of the Army Chief of Staff to the military installation, calling for the creation of a specific area in which interrogations of suspected subversives could take place. Gordillo stated that he had no knowledge of this document or why this and other documents were found at his residence.
Alejandro Rodríguez, representing Emma Molina Theissen, asked the defendant to review another document, also seized at the time of the defendant’s arrest, dated September 28, 1981; this was two days after Emma Molina Theissen’s detention. The document, a report addressed to Gordillo, registers the arrest of María Margarita Chapetón, the name on the identity document that Emma Molina Theissen was carrying with her when detained, and states that she was a member of Patriotic Worker Youth (PJT). This, according to the prosecution, establishes that Gordillo was fully aware of Emma Molina Theissen’s detention. Gordillo refused to answer any questions but denied any knowledge of the document.
The court adjourned the hearing at around 4:00 p.m. and scheduled the next hearing for Monday, March 5, at 8:00 a.m. Due to another trial taking place at the court, the Molina Theissen trial will be in session only the first two or three days of the work week. It is expected to continue until the end of April.
Jo-Marie Burt is an Associate Professor of Political Science and Latin American Studies at George Mason University. She is also a Senior Fellow at the Washington Office on Latin America (WOLA). Paulo Estrada is a human rights activist, archaeology student at San Carlos University, and civil party in the Military Diary case.