While the world barely took notice, justice came upon a tribe of Guatemalan Indians and their supporters this month when their 13-year claim of genocide and crimes on humanity produced a guilty verdict against a former de-facto president said to have organized the mass killings—marking the first time in world history that a head of state had been brought to trial for genocide by his own country.
But days later and just as unnoticed, the achievement was reversed, as they had been before, as it had been most notably in 1953 when presidential land concessions to the country’s impoverished were rolled back following a coup d’état organized by higher powers—and the act added one more chapter to the country’s continuum of bitter tribulation for Guatemala’s disenfranchised masses.
Guatemala’s Constitutional Court voted to overturn the genocide verdict, citing what amounted to procedural missteps in the trial which needed correcting; a symbolic reinstatement of a disruptive defense lawyer, an official recognition of the admissibility of defense evidence already allowed, the proper routing of case files between judges, all raising doubt about the Court’s integrity and true independence.
“There was nothing invoked [in the proceedings] that suggested the lack of a fair trial,” one Constitutional Court judge wrote in his opposition to the vote. He went on in some detail about the obstructionist tactics of the defense and how they were being rewarded by the Court’s decision, and how “manifestly disproportionate” the Court’s overturn decision was in relation to faults that may have occurred in the trial court. The other of the two dissenting judges in the 3-2 Constitutional Court overturn vote wrote about inconsistency and imprecision in the Constitutional Court’s behavior toward the proceedings. “And so I believe that this Court has no basis whatsoever to interfere with the application of ordinary justice through a meaningless appeal to restore reported violations. It is burdensome for the victims,” she concluded in her 5-page dissent.
But the Constitutional Court is made up of individuals. And individuals are susceptible to the wants of others, particularly when money or favors or threats are involved.
The day before the trial was set to conclude, after overwhelming court testimony detailing genocidal behavior, a once-involved judge declared the entire trial annulled. This is the same judge, Judge Patricia Flores, who found enough evidence to move the genocide case against the former dictator to the trial phase. “We can establish these are acts so degrading, so humiliating that there is no justification,” Judge Patricia Flores said to the accused, Jose Efraín Ríos Montt, in January 2012. “You were the general commander of the military and had knowledge of the execution of these plans.”
Though it is still unclear what power or place she had to impose such a ruling beyond her jurisdiction, Judge Flores’ staggering annulment order on April 18 halted the trial for almost two weeks while the Constitutional Court sorted out the mess.
But the Constitutional Court was cryptic on the matter, saying only enough to allow the trial to continue. The Court did not immediately uphold or overrule the annulment order. And so when the guilty verdict came it was felt as a provisional ruling, conditional on what the Constitutional Court would eventually say.
“Today’s ruling is not set in stone,” Guatemala’s current president, Otto Pérez Molina, said the day of the verdict, as if he might know something of what was to come. Pérez Molina initially supported the trial and the idea of getting at the truth once-and-for-all, despite his public claim that genocide never occurred. Many found it odd that a president would say such a thing before a trial of this nature even began, but he repeated it when the trial was underway. Ten days into the trial, when a prosecution eyewitness implicated him in the massacres, Pérez Molina, a Major during the Army’s occupation of the region in question, hardened his rhetoric and joined Guatemalan high-profile voices who condemned the trial and warned that a guilty verdict would polarize the country. The former Army specialist testified ten days into the trial that Pérez Molina, his then-superior, commanded the Army’s rounding up of villagers for transport to military outposts, where they were then executed. “The soldiers, on orders from Major ‘Tito Arias,’ better known as Otto Pérez Molina,” Hugo Ramiro Leonardo Reyes told the court, “coordinated the burning and looting, in order to later execute people.”
Some speculated that Pérez Molina was behind the annulment order, that once his name was mentioned in the testimony he acted to close it down. Allan Nairn, who had filmed the younger Pérez Molina when he was an Army commander in 1982 and who was scheduled to testify as a prosecution witness, said that the trial’s suspension, which occurred shortly after the implicating testimony, was the result of a “secret intervention by Guatemala’s current president and death threats delivered to judges and prosecutors by associates of Guatemala’s army.”
“At the last minute I was kept off the stand ‘in order to avoid a confrontation with the [Guatemalan] executive,’” Nairn wrote on his blog. “What that meant, I was given to understand, was that Gen. Otto Pérez Molina, Guatemala’s president, would shut down the case if I took the stand because my testimony could implicate him.”
Certainly it’s an odd pairing: a former Army major, now president, trying to hide his role in the country’s 1960-1996 civil war massacres; and a subordinate Attorney General he inherited who is determined to bring to justice those responsible for war crimes.
Days after the historic genocide finding on May 10, Guatemala’s Attorney General, Claudia Paz y Paz, praised for bringing the case to trial against enormous opposition, was in San Francisco to accept a human rights award. But in both private and public remarks she stayed clear of talking about the trial or the verdict, as if it hadn’t happened. Even the next day, at a program at University of California, Berkeley’s Center for Latin American Studies, she never acknowledged the verdict in her 1-hour talk, and instead spoke from notes about social conditions that give rise to justice. On both days a documentary crew posed her in various situations for a forthcoming film, “Paz y Paz: Inside the Prosecutor’s Office.”
“Things are really hectic in Guatemala,” Ms. Paz y Paz’ press intermediary said to my request for an interview in San Francisco. “We don’t want to say anything that might upset the situation,” he explained. “I can speak with you next week, on Monday,” Ms. Paz y Paz told me later that night.
But on Monday, the Constitutional Court spoke, this time in a clear voice, releasing a 32-page ruling that outlined its reasons for annulling the verdict and ordering the case retracted to an earlier time. Central to its justification was protection of the defendant’s right to counsel of his own choosing. Ríos Montt’s lawyer, Francisco Garcia Gudiel, had gotten himself thrown out of the courtroom on the first day of the trial after he became disorderly when two trial judges would not recuse themselves for bias, and later used this to petition the Constitutional Court to have the proceedings vacated. Garcia Gudiel’s expulsion left Ríos Montt without counsel of his choosing during the trial’s opening day afternoon, the Constitutional Court reasoned, and its remedy, via its Monday ruling, was the reinstatement of Garcia Gudiel as Ríos Montt’s attorney and the annulment of trial proceedings after April 19. But Garcia Gudiel had already been reinstated when the trial resumed on April 30 (the trial was suspended from April 19 to April 30), whereupon the court re-read the indictment against Ríos Montt and set aside witnesses testimony heard during the first day when Ríos Montt was without Garcia Gudiel, though Garcia Gudiel did little defending in his reinstatement. Despite repeated prodding by trial judges, Garcia Gudiel and Ríos Montt’s defense produced only two of the twelve witnesses it said it would present to refute the charges.
Guatemala’s Constitutional Court ruling technically brings the case back to April 19, presumably preserving all witness evidence entered prior to that date, and presumably continuing the trial in the same court with the same judges, though language in the ruling is not specific about any of that. There are still other defense petitions that haven’t been ruled on by the Constitutional Court, and it’s very possible that the entire trial is eventually annulled. “Once these things get stopped they are very difficult to get going again because there are a thousand ways for the defense to divert the matter and tie this thing up in knots,” a human rights law expert close to the trial advised.
Meanwhile, Judge Flores, who persisted with her effort to annul the trial by staging a second vacate order during the trial’s closing arguments, is under investigation by Guatemala’s Judicial Authority and its Human Rights Ombuds Office after a complaint by the International Commission of Jurists calling for Flores’ dismissal for behavior that “demonstrates[s] that organized crime has infiltrated her position.”
From the get-go, apathy and impunity were the obstacles to bringing Guatemala’s genocide case. In normal times a finding of genocide would arouse outcry around the world. But these are extraordinary times, and the world has been numbed to ambient group killing, and the genocide verdict barely won mention in major newspapers. Even among Guatemalans the news didn’t seem to matter much. “Guatemala is racist,” said one native Guatemalan about the country’s widespread indifference to the case against Ríos Montt. “Indians don’t matter to most Guatemalans.” As for Guatemalans here in the US, most were unaware of the trial against Ríos Montt. “He was the best president Guatemala ever had,” was the reaction I often heard.
It’s a stunning contrast to see Ríos Montt in public today, silent most of the time, showing himself a victim, bewildered by the commotion around him, and clips of him as an Army General and later President, so brash and glib, brimming with justification, boasting to an interviewer in 1982, “The fact is that in 16 months we won a 20 year war. We did what we had to do. We didn’t assassinate or kill, we simply told the truth. (Here he pauses for effect.) And truth can be painful and uncomfortable.”