The Molina Theissen Judgment, Part I: Overview of the Court’s Findings

In this first of three posts on the judgement in the Molina Theissen trial, we analyze key aspects of the verdict. A second post will scrutinize the court’s findings in response to key defense arguments, which have broader implications for future human rights trials. The third and final post will discuss domestic and international reactions to the trial.

“The accused could have acted differently, but they preferred to disobey human rights norms as well as Guatemalan law, which prohibits the acts they carried out,” said Judge Pablo Xitumul, the presiding judge in the Molina Theissen case, as he read out a summary of the court’s verdict. The court handed down its 1,075-page judgment on May 23, 2018, after a three-month long trial, which took place 37 years after the crimes were committed.

Five senior military officials, all retired, stood accused of the illegal detention, torture, and sexual violence of Emma Molina Theissen; three of them faced additional charges for the enforced disappearance of her 14-year-old brother, Marco Antonio, in 1981.

“These crimes offend all of humanity,” Judge Xitumul intoned, “and therefore they cannot remain unpunished.” The court unanimously found four of the officials guilty of crimes against humanity and aggravated sexual assault against Emma Molina Theissen and three of them guilty of the enforced disappearance of Marco Antonio Molina Theissen, sentencing them to 33 to 58 years in prison. One former official was found not to have command responsibility and was acquitted of all charges.

In weighing the evidence, the court made important findings of fact, determined which sources of law to rely on, and came to legal determinations, including on individual criminal accountability. The judgement assigns criminal responsibility to the highest military officials who designed and oversaw the implementation of the counter-insurgency strategy that entailed the perpetration of atrocities in this case. Official military documents, international treaties, and domestic jurisprudence were fundamental to the court’s determination that “senior officials of the Guatemalan Army, fully aware of their responsibilities as public servants and of the norms that guide and delimit their conduct, exceeded their authority in their interpretation and application of the doctrine of national security.”

High Risk Court “C,” comprised of Judge Pablo Xitumul de Paz, Judge Eva Marina Recinos Vásquez, and Judge Elvis David Hernández Domínguez, presided over the hearings. The plaintiffs were represented by lead prosecutor for the Attorney General’s Office Erick de León and civil party lawyers Alejandro Rodríguez for Emma Molina Theissen and Héctor Reyes for Emma Theissen Álvarez de Molina, Marco Antonio’s mother.

Sources of Law

Judge Xitumul noted that the court was acting in accordance with the Law of National Reconciliation, passed by the Guatemalan Congress in 1996 in the context of the peace accords. Further, the court relied on the report of the Commission for Historical Clarification, sentences handed down by the Inter-American Court for Human Rights, and key treaties and conventions that the State of Guatemala is obligated to uphold. The court also drew upon international jurisprudence from the Nuremburg Trials, the International Tribunals for the Former Yugoslavia and Rwanda, and the International Criminal Court, as well as the judgments handed down by the High Risk Courts of Guatemala in several grave crimes cases. Judge Xitumul referred to convictions handed down by Guatemalan courts for the enforced disappearance of Fernando García and Edgar Enrique Saenz Calito; the Spanish Embassy massacre; the Maya Ixil genocide; and the sexual violence and sexual and domestic slavery against Maya Q’eqchi’ women in Sepur Zarco, among others. The responsibility of the Guatemalan security forces was proven in each case, he noted, which coincides with the rulings handed down in several of these cases by the Inter-American Court of Human Rights.

Further, the court referred to Guatemalan law, which establishes the conduct that constitutes crimes against humanity, aggravated sexual violation, and enforced disappearance, for which the accused stood trial in this case. Article 378 of the Guatemalan Criminal Code encompasses war crimes and crimes against humanity, and it defines these crimes as a violation of the humanitarian obligations, laws, and treaties relating to the treatment of prisoners of war or hostages, individuals who were harmed in the context of belligerent acts, or any inhumane act against the civilian population, or hospitals. It carries a penalty of 20 to 30 years.

Aggravated sexual violation, outlined in Articles 173 and 174 of the criminal code, occurs when two or more persons are involved in the crime of sexual violence; when the author of the crime is a relative or legal custodian of the victim; or when the crime causes grave harm to the victim. It carries a penalty of eight to 20 years.

The crime of enforced disappearance, outlined in Article 201 of the criminal code, occurs when a person is secretly deprived of their liberty with the authorization, support, or acquiescence of a government authority, followed by a refusal to acknowledge the person’s fate and whereabouts. Such a crime is considered a permanent crime as long as the fate of the victim remains unknown and carries a penalty of 25 to 40 years.

Findings of Fact

The court determined that the evidence presented demonstrated the principal claims of the plaintiffs: that on September 26, 1981, Emma Molina Theissen was stopped at a military checkpoint and was illegally captured; she was carrying documents related to the Patriotic Worker Youth (JPT) and the Guatemalan Workers Party (PGT); she was brought to the Manuel Lizandro Barrillas Military Zone (also referred to as Military Zone No. 17, or MZ17) in Quetzaltenango, where she was interrogated, tortured, and sexually violated multiple times; and that on October 5, Emma managed to escape from the military base. Emma herself testified about the treatment she endured while in military detention. She also testified that the military officials were trying to force her to reveal the names and location of her comrades and their safehouses, but she refused. Witnesses testified to having aided Emma, physically and emotionally, and to helping her flee to safety, eventually to Mexico.

The court also determined that the evidence demonstrated that senior officials ordered, via military intelligence channels, an operation to locate and recapture Emma Molina Theissen. As military expert and retired general of the Peruvian army Rodolfo Robles testified, the escape of a prisoner from a military base was not only a major breach of security, but a huge embarrassment for the intelligence services, motivating the operation to recapture Emma. On October 6, 1981, military officials appeared at the home of Emma’s parents in Guatemala City, only to find Emma’s mother, Emma Theissen de Molina, and her 14-year-old son, Marco Antonio. Emma Theissen testified in court about how the men illegally raided and ransacked her home and, not finding Emma, kidnapped Marco Antonio, who remains missing to this day. In one of the most dramatic moments of the trial, Emma Theissen de Molina positively identified Hugo Zaldaña Rojas, the intelligence official of the military base where Emma had been held prisoner, as one of the men who took her son.

Legal Determinations

The judgment recognizes enforced disappearance as an ongoing crime; finds that international crimes are not subject to statutes of limitations; and finds that amnesties, pardons, and other measures cannot be applied to such crimes. The judgment also acknowledges that the practice of sexual violence, torture, and enforced disappearance were part of the military’s counter-insurgency strategy during the Guatemalan internal conflict. Finally, the court upheld international standards for cases of sexual violence by not obligating the victim to repeat her testimony in court (her testimony before the preliminary judge was entered into evidence and presented during the proceedings) and for not subjecting her to confrontations with the accused.

The court found the four military officials criminally responsible for the design and implementation of the counterinsurgency plans that resulted in the crimes committed against Emma and Marco Antonio Molina Theissen, based on their functional and effective command responsibility. The court argued that the military officials failed to observe fundamental guarantees they were obligated to uphold as legal representatives of the Guatemala state, and instead acted outside the law, turning the military bases into “clandestine centers of detention, in which prisoners were submitted to interrogation through physical and psychological torture, and women prisoners were subjected to sexual violence, as was proven throughout the trial.”

The court determined that the military officials had received local and foreign training in counter-insurgency warfare and military intelligence. “Since then, the military high command, via military intelligence channels, transmitted orders, and requested and received information about, secret and illegal clandestine military operations that were carried out by superior and subaltern officials, specialists, and other actors, resulting in atrocities.”

The court added further: “The guilty parties in this case were always aware of what they were doing; with full awareness of the consequences of their actions, they intentionally failed to observe basic guarantees and norms established in national and international laws and treaties to protection unarmed and non-belligerent civilians in a situation of vulnerability and defenselessness, along with the obligation and duty to protect victims and war prisoners of any kind.”

Individual Criminal Liability

In its verdict, the court determined that four of the accused were criminally responsible for crimes against humanity, in the form of illegal detention, torture, and sexual violence, against Emma Molina Theissen, while she was in detention in MZ17 between September 27 and October 5, 1981. The four men convicted are: retired army brigadier general and former head of the Army Chief of Staff Benedicto Lucas García; former army major general and former chief of military intelligence of the General Staff of the Army, Manuel Callejas y Callejas; former infantry colonel and commander of MZ17, Francisco Luis Gordillo Martínez; and Hugo Ramiro Zaldaña Rojas, retired major and then-lieutenant colonel in the Guatemalan army and former intelligence official (S2) of MZ17. The court sentenced each of the men to 25 years in prison.

The court determined that the repeated sexual violence against Emma Molina Theissen constituted extreme malice and thus found each of the four officials guilty of the crime of aggravated sexual violation of Emma Molina Theissen, increasing their sentence by an additional eight years.

The court determined that Lucas García, Callejas y Callejas, and Zaldaña Rojas were guilty of the enforced disappearance of Marco Anontio Molina Theissen and sentenced them to an additional 25 years in prison.

The court found that retired colonel and deputy commander of MZ17 at the time of the crimes Edilberto Letona Linares lacked command responsibility and was not a member of military intelligence, and acquitted him of all charges.

The court determined that retired major (at the time lieutenant colonel) Hugo Zaldaña Rojas was in charge of overseeing Emma Molina Theissen during the time she was held in captivity at the MZ17, and that he knew about, permitted, and oversaw her interrogation, which included torture, multiple instances of individual and collective sexual violations, and cruel, inhumane, and degrading treatment. The court further determined that Zaldaña Rojas informed his superiors about Emma’s escape on October 5, 1981, and activated an intelligence operation to locate and recapture her, that resulted in the capture on October 6 of Emma’s brother. The court noted that Emma Molina Theissen recognized Zaldaña Rojas as her captor, and her mother, Emma Theissen Álvarez de Molina identified Zaldaña Rojas as the person who led the operation that resulted in the kidnapping of Marco Antonio.

The court determined that retired colonel Francisco Luis Gordillo Martínez, as commander of MZ17, and based on military doctrines, norms, and regulations; Article 145 of the Constitution of 1965; and the Manual of the Army Chief of Staff was responsible for everything that occurred or failed to occur under his command. On August 13, 1981, Gordillo Martínez emitted an order to comply with superior orders to implement military checkpoints in the Department of Sololá. On September 27, 1981, Emma Molina Theissen was illegally detained at a checkpoint in Sololá, which the evidence presented demonstrated was under the jurisdiction of the commander of MZ17.

According to the judgment:

These circumstances unleashed the clandestine and secret captivity of the victim and her consequent entry into the military intelligence system, through which she was subjected to torture through interrogations, multiple instances of individual and collective sexual violations, and cruel, inhumane, and degrading treatment, acts without which such criminal acts could not have been committed.

The court determined that it had been proven that Gordillo was fully aware of the illegal detention of Emma Molina Theissen, her entry into captivity of the military installations he commanded, the interrogations by torture, multiple individual and collective sexual violations, and of the cruel and inhuman, degrading, and infamous treatments to which the victim was subjected during nine days.

The court determined that retired major general Manuel Callejas y Callejas was chief of military intelligence of the General Staff of the Army. Based on his functional responsibilities, he was responsible for obtaining and analyzing intelligence of operative and strategic value. The court determined that the report of the expert witness Julieta Rostica proved that as chief of military intelligence, Callejas y Callejas had traveled to Argentina and other South American countries to receive technical and professional training in counterinsurgency strategy and intelligence matters. The court determined further that, based on his functional role as head of military intelligence, he directly informed his superior officer (Benedicto Lucas García), of the capture and later escape of Emma Molina Theissen from MZ17; he ordered the implementation of a special intelligence operation to locate and recapture her; and he instructed Zaldaña Rojas to oversee this operation at the Molina Theissen family home in Guatemala City. The court determined that Zaldaña Rojas, upon not finding Emma Molina Theissen at the family residence, kidnapped Marco Antonio Molina Theissen, who remains disappeared, and that his superior officers, Callejas y Callejas and Army Chief of Staff Lucas García, knew about and approved of this action.

The court determined that retired brigadier general Benedicto Lucas García, as head of the Army Chief of Staff at the time of the crimes, was responsible for the command, organization, instruction, discipline, and conduct of the army. He exercised the operational command of military intelligence, being responsible for directing, coordinating, supervising, and integrating the work of the High Command, as well as designing and conducting the counterinsurgency strategy. As such, he was responsible for the actions carried out by his subordinate officers, including the crimes committed against Emma Molina Theissen and her brother.

“Based on the evidence presented in these proceedings, this court determines that, defendants Zaldaña Rojas, Gordillo Martínez, Callejas y Callejas, and Lucas García, in the exercise of their mandated functions, departed from the observance of the fundamental guarantees, and acted outside of the law,” states the judgment.

No public information is available on whether or not the defendants will appeal their guilty verdict and sentences.

 

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.

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