In Guatemala, COVID-19 Puts Justice on Hold, Emboldening Convicted War Criminals to Seek Their Freedom

The COVID-19 pandemic has upended all facets of life across the globe. In Guatemala, as in many parts of the world, the threat of COVID-19 has paralyzed judicial activity. As a result, several ongoing judicial proceedings involving conflict-era war crimes have been temporarily suspended. At the same time, convicted war criminals, claiming that they are at high risk, have seized this opportunity to push for their immediate release from prison.

President Alejandro Giammattei announced the first case of COVID-19 in Guatemala on March 13. He downplayed the situation, urging the population to remain calm and “go to the beach.” However, the severity of the crisis soon led to more drastic measures, including a total shutdown of Guatemalan borders and the declaration of a nationwide state of emergency. Critics have slammed the Giammattei government for its lack of transparency regarding the status of COVID-19 cases, and for his constant attacks against members of the press.

In light of the coronavirus pandemic the Judiciary announced a temporary shutdown of the courts on the evening of March 16 through March 31, except for emergency situations. This was later extended to April 7, with the idea that activities could resume after the Holy Week holiday. Since then, however, the government has extended the shutdown.

Grave Crimes Cases on Hold in Guatemala

Four grave crimes cases currently in judicial proceedings have been temporarily suspended and will have to be rescheduled after the COVID-19 crisis subsides. These include the Maya Ixil genocide case during the Lucas García government; the Maya Ixil case during the Ríos Montt government; the Maya Achí sexual violence case; the Dos Erres massacre case.

A fifth case, the CREOMPAZ mass forced disappearance case, is also pending resolution of several constitutional rights challenges (amparos). In June 2016 a court ruled that there was sufficient evidence for the case to go to trial but excluded 80 percent of the victims and refused to admit a victims’ association as a civil party to the case. As a result of the failure of the Guatemalan judiciary to resolve these amparos, the CREOMPAZ case has remain stalled for four years.

The Maya Ixil Genocide Case 1978-1982. Between March 9 and March 13, Judge Miguel Ángel Gálvez of High Risk Court “B” held evidentiary phase hearings in Maya Ixil genocide case during the government of Romeo Lucas García (1978-1982). Three senior military officials—retired army general Benedicto Lucas García, Manuel Callejas y Callejas, and César Noguera Argueta—face charges of genocide, crimes against humanity, and forced disappearance. Those proceedings concluded on March 13, and Judge Gálvez said he would deliver his decision on whether to send the case to trial on March 24. That hearing was suspended a result of the temporary closing of the Judiciary on March 17. While it is possible that Judge Gálvez could deliver his ruling in written form, our sources suggest it is unlikely he would do so.

The Maya Ixil Genocide Case 1982-1983. The evidentiary phase hearings in the Maya Ixil genocide case during the de facto regime of Efraín Ríos Montt (1982-1983) was scheduled to begin on April 14. In November 2019, the Attorney General’s Office accused former retired General Luis Enrique Méndoza García, who was the Chief of Military Operations during the Ríos Montt government, of the crimes of genocide and crimes against humanity against Maya Ixil population. Authorities arrested Mendoza García in June 2019 when he went to vote in the national elections, despite a warrant for his arrest outstanding since 2011. The evidentiary phase hearings will be heard by High Risk Court “C,” which is presided by Judge Silvia de León. However, at the time of Mendoza García’s first declaration hearing, Judge Rodolfo Bremer Ramírez presided over the court.

Two former military officials who were deported from the United States and were facing war crimes charges have also seen their cases delayed as a result of the judicial closure.

The Las Dos Erres Massacre Case, Trial 4. Former Kaibil Gilberto Jordán, who admitted in a U.S. immigration court to having killed the first child in the December 1982 Dos Erres massacre, was deported to Guatemala on March 2, after having served a ten-year sentence in a U.S. prison. The first declaration hearing in his case is still pending. Judge Claudette Domínguez, of High Risk Court “A,” will hear the case. She has been recused from several cases due to allegations of bias in favor of military defendants. Four former Kaibil soldiers and one military officer have been convicted in three separate trials in this case, in 2011, 2012, and 2018.

Maya Achi Sexual Violence Case. On January 31, Judge Gálvez indicted Francisco Cuxum Alvarado in the Maya Achi sexual violence case and scheduled evidentiary hearings to begin on May 19. Officials in the United States deported Cuxum Alvarado on January 29 after being sentenced in December 2019 on charges of illegal reentry. He admitted to U.S. authorities to being a member of the former civil defense patrols (PAC) in Rabinal in the 1980s. Two others wanted in the Maya Achi sexual violence case are still at large, including one of Cuxum Alvarado’s brothers. His brother Damian Cuxum Alvarado was among the six former PAC members released in a controversial ruling by Judge Claudette Domínguez last August, who victims successfully had recused from the case. The victims’ lawyers have appealed the decision to dismiss charges against the six former PAC members.

Appeals filed by the four senior military officials convicted in the Molina Theissen case in May 2018 are also pending. A hearing scheduled for February in this case was postponed and had not yet been rescheduled when the COVID-19 pandemic suspended judicial activities.

Taking Advantage of the Crisis

Amidst the global COVID-19 pandemic, there is a serious concern for the situation of persons deprived of liberty, particularly in Latin America’s typically overcrowded prisons and detention centers. Some countries have undertaken significant actions to reduce select prison populations and to provide better prison conditions to avoid the spread of the virus.

At the same time, however, in Guatemala as well as in other parts of Latin America, relatives and defense lawyers for several individuals convicted of crimes against humanity are citing the coronavirus crisis as grounds for their clients’ release.

In Guatemala, Karen Fisher filed an amparo before the Constitutional Court on April 6 urgently requesting the release of the four senior military officials convicted in the Molina Theissen case (among them, Benedicto Lucas García and Manuel Callejas y Callejas, who are in judicial proceedings in the Maya Ixil genocide case), as well as one military official charged in the CREOMPAZ case, Raúl Dehesa Oliva. Fisher argues that because they are over the age of 75, they are at high risk of contracting COVID-19. As International Justice Monitor reported in April 2019, Fisher previously filed a complaint seeking the release of the four officials convicted in the Molina Theissen case. Her complaint was rejected by the court as “spurious” and dismissed.

In her claim to be safeguarding the rights of the elderly, Fisher cites an April 2 resolution from Argentina’s Federal Court of Appeals granting house arrest to six former military officials convicted of crimes against humanity. That resolution refers to a press release issued on March 31 by the Inter-American Commission of Human Rights (IACHR), which makes a series of recommendations to member-states to guarantee the health and integrity of the persons deprived of liberty and their families in the face of the COVID-19 pandemic. The IACHR press release urges member-states to adopt measures to address the overcrowding of detention centers, including reevaluating cases of preventive detention; granting alternative measures such as probation, house arrest, or early release for people considered to be in the high risk group, such as the elderly, people with chronic diseases, pregnant women or with children in their care and for those who are close to serving their sentences; adapt conditions within detention centers to prevent the spread of COVID-19; and establish protocols to guarantee security and order in detention centers.

Though these recommendations do not specifically address the issue of individuals deprived of their liberty for their responsibility in crimes against humanity and other grave human rights violations, the IACHR published Resolution No. 1/2020 on April 10, which does address this situation. The IACHR reiterates that member-states should adopt urgent measures to protect individuals deprived of liberty in the current context of COVID-19 but notes that regarding individuals convicted of serious human rights violations, member-states must take into account inter-American standards:

In the case of people convicted of serious violations of human rights and crimes against humanity, taking into account the legal rights affected, the seriousness of the facts and the obligation of the States to punish those responsible for such violations, such evaluations require a more stringent analysis and requirements, adhering to the principle of proportionality and applicable inter-American standards.

Nevertheless, like Fisher, defense lawyers and families of convicted war criminals around the region are using the March 31 press release to seek the release of their clients and/or family members, obviating the April 10 Resolution thta qualifies these recommendations in cases of individuals convicted of war crimes or serious human rights violations.

In addition, while Fisher cites one court decision in Argentina allowing convicted war criminals to serve out their prison term under house arrest, several other courts in Argentina have rejected similar requests. As of April 10, according to La Nación, more than 100 convicted war criminals have requested the courts to allow them to finish their prison terms under house arrest. The courts have rejected 41 of these requests, while granting it in 17 cases.

Elsewhere in Latin America convicted war criminals are similarly seeking such benefits in the context of the COVID-19 crisis. In Chile, President Piñera expressed support for a legislative bill promoted by right-wing legislators that would include 115 convicted war criminals among those who would be freed because of their age in the context of the COVID-19 crisis. However, after being rebuked by public opinion, Piñera backtracked, signing into law legislation that would allow convicted criminals over the of 75 to serve out their terms under house arrest, but explicitly excludes war criminals from this benefit. Members of Piñera’s party have challenged the law’s constitutionality, saying it violates “equality before the law.”

In Peru, Keiko Fujimori, daughter of former President Alberto Fujimori, has called on President Martín Vizcarra to release her father from prison, saying that there is a “great risk to his life” in the context of the coronavirus pandemic. Fujimori, 82, is serving a 25-year sentence as the intellectual author of a series of human rights violations, including the 1991 Barrios Altos massacre and the 1992 forced disappearance of nine students and a professor from the La Cantuta University. He is the sole prisoner in a special forces police base east of Lima, which was built especially for him. President Vizcarra has not made a public statement regarding this request.

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.