The Molina Theissen Judgment, Part II: The Court’s Handling of Defense Arguments

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

In its verdict in the Molina Theissen trial, High Risk Court “C” in Guatemala addresses, point by point, the key arguments made by the military officers’ defense lawyers and the grounds for which it dismisses them as relevant. This is significant beyond the present case, as these arguments are commonly used by military lawyers in Guatemala’s grave crimes cases. Moreover, many of these arguments are the foundation of the denial narratives that have continued to circulate in post-war Guatemala refuting that the military committed atrocities during the 36-year internal armed conflict (1960-1996). The “juridical truth” established in this judgment, then, represents a fundamental challenge to these denial narratives and contributes to rewriting the history of the Guatemalan conflict.

The court first addressed the military officials’ overall argument that seeks to simultaneously deny that atrocities were committed while justifying them in the name of “saving the nation” from the “communist threat.” The court states: “To say that there was not a ‘war,’ but rather an armed confrontation between the Army and the Guerrilla, and that if there were any deaths it was in defense of the nation, because the Army was authorized to use violence to attack and annihilate communism” is “unsustainable.” Such arguments “seek to justify and at the same time deny the fact that the ‘counterinsurgency war’ was rigorously planned, based on the Doctrine of National Security, and then implemented by the Army,” which “categorized the civilian population as the ‘internal enemy and a military objective to annihilate using any and all means,’ which it then attacked without mercy.”

Similarly, the court challenged the argument that human rights trials, such as this one, “reopen old wounds” and unfairly persecutes members of the military and not ex-guerrilla fighters, who presumably were amnestied in the context of the peace accords. The court also rejected the proposition that because the case was already heard before the Inter-American Court of Human Rights and the Molina Theissen family received monetary reparations as a result, these proceedings represented double jeopardy. The court noted that the Inter-American Court only clarifies the responsibility of states not individuals, which is the duty of domestic courts. Further, it noted that international crimes, such as those examined in this case, cannot be subjected to statutes of limitations, particularly when those responsible are agents of the state; and that such crimes cannot be amnestied or pardoned.

The court rejected the defense attorneys’ claims that the court was acting on the basis of ideological biases, and/or hatred of or feelings of revenge toward the armed forces. The court dismissed such claims, clarifying the administration of justice is not based on ideology or emotions, and is conducted in strict observance of international standards. The court also rejected the argument that the sentence in this case was “predetermined,” stating that such claims, which seek to undermine confidence in the trial court judges, are disrespectful and impertinent. The court reaffirmed its independence and respect for Guatemalan law, international human rights law, and its strict adherence to international standards.

The court also referred to the defense attorneys’ claim that the accused are innocent and their oft-repeated argument that “he who owes nothing, has nothing to fear.” The court determined that such arguments are inadmissible because the evidence, including secret military intelligence documents found in the homes of some of the defendants upon their arrest in this case, proves otherwise.

The court also rejected the defense attorneys’ arguments challenging the suitability of the expert witnesses presented by the plaintiffs, on the argument that they are not members of the National Institute of Forensic Sciences (INACIF). The court noted that the Attorney General’s Office had the authority to present expert witnesses and that the court itself had the ability to order expert reports.

Finally, the court addressed the suggestion by the defense attorneys that there was no evidence of the sexual violation of Emma Molina Theissen because there was no expert report that verified her claims. The court noted that the Criminal Procedural Code establishes that such reports can only be carried out if the victim gives her consent. In the court of these proceedings, expert witnesses had established that an expert report of this type would be seriously retraumatizing to the victim. Moreover, the expert report on the Istanbul Protocol [pdf] presented by Dr. Jorge de la Peña established that it would have been impertinent to submit Emma Molina Theissen to direct questioning during the proceedings, or to a confrontation with the accused.

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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