Military Officials on Trial for Genocide Seek Judge’s Removal

Judge Miguel Ángel Gálvez suspended yesterday’s pretrial hearing in the Maya Ixil genocide case after less than an hour. The suspension happened after one of the defense attorneys presented a motion seeking Judge Gálvez’s removal of from the case.

Last November, Judge Gálvez, who presides over High Risk Court “B,” charged three senior military commanders with genocide, crimes against humanity, and forced disappearance against the Maya Ixil population. The alleged crimes in this case include 1,668 massacre and other deaths, 81 cases of forced disappearance, and 36 cases of sexual violence. These crimes occurred during the government of Romeo Lucas García government (1978-1982), under which prosecutors allege the Guatemalan army first designed and implemented a policy of genocide. The 2013 genocide trial, which resulted in a conviction that was later vacated, focused on the army’s actions during the subsequent government of General Efraín Ríos Montt (1982-1983).

The three officials facing charges are retired General Benedicto Lucas García, former chief of the General Staff of the Guatemalan Army (and the brother of Romeo Lucas García); retired General Manuel Callejas y Callejas, former chief of military intelligence (G2); and retired Colonel César Octavio Noguera Argueta, former chief of military operations (G3). Lucas García and Callejas y Callejas are serving 58-year sentences for their role in the Molina Theissen case. Noguera Argueta was arrested in November.

Due Process Violation or Delay Tactic?

Noguera’s lawyer, Mario Antonio Cuevas Vidal, argued that Judge Gálvez does not have jurisdiction over the current case. He based his argument on article 107 of the Criminal Code, which states that “no one may be tried, convicted, punished or subjected to security and correctional measures, except by the courts designated by law prior to the events.” Since the High Risk Courts were created on September 3, 2009 and the events for which Noguera has been charged occurred 30 years ago, Cuevas argued that the case must be heard by a common court or would amount to a violation of his client’s due process rights. He called on Judge Gálvez to remove himself from the case and for the case to be reassigned to a judge from a regular criminal court.

Jorge Lucas Cerna, representing his father, Benedicto Lucas García, argued that it has been a “dirty practice” of the plaintiffs to transfer conflict-era cases to the High Risk Court system, which he said were created in an ad hoc fashion with the purpose of discriminating against military defendants. The fact that the defendants were not present when the Supreme Court of Justice assigned this case to High Risk Court “B” was evidence of this discriminatory treatment. He joined Cuevas Vidal in calling upon Judge Gálvez to remove himself the case.

Blanca Castañeda of the Attorney General’s Office, who is tasked with presenting the case against the three retired military officials, responded to the defense motion noting that her office filed a request that this case be heard by the High Risk Courts before the Supreme Court of Justice on January 23, 2013. A representative of the Public Defender’s Office was present at that hearing and offered no objection. She argued that this meant that the defendants’ due process rights had been respected. She explained that the request was made to guarantee the protection of the parties to the case, taking account of the charges of genocide, crimes against humanity, and forced disappearance. The level of risk to parties in the case fulfills the requirements for hearing by the High Risk Courts, she argued, so the court should dismiss the defense motion.

Mynor Melgar, lawyer for the Office of Human Rights of the Archdiocese of Guatemala (ODHAG), which is representing the victims, said he believed this motion is nothing more than a delay tactic. He noted that the High Risk Courts do in fact have jurisdiction over these cases.  He also reiterated Castañeda’s point that it was the Supreme Court of Justice that assigned the case to the High Risk system. He further argued that procedurally, if the defense wanted to request the judge’s recusal, they should have done so when their clients were arrested, and it should have been presented to the Supreme Court, not before Judge Gálvez’s court. Melgar called on the judge to dismiss the defense motion.

Judge Gálvez informed the parties that he was suspending the hearing to analyze the petition. He said they would reconvene Tuesday, March 10, at 9:00 AM, when he will issue his resolution.

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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