BACKGROUND
It is estimated that over 200,000 people were killed or disappeared between 1960 and 1996 in Guatemala; countless others were victims of torture and other abuses. Although the conflict formally ended with the signing of the Oslo Peace Accords in 1996, the situation remains fragile today. Many of the perpetrators of torture, mass killings, rapes, and other crimes during those years still live in the same communities where they committed these atrocities, resulting in an environment of ongoing fear. Although some cases have been successfully prosecuted against lower and medium ranking police and military , none of the high commanders in power during this reign of terror have been held accountable in Guatemala. Until recently, all attempts to seek justice within the Guatemalan legal system have been thwarted due to corruption, malfeasance, indifference and fear. In that way, “impunity for past crimes and impunity in the present are inextricably bound together.” Guatemala’s impunity problems were so great that in 2007 the United Nations and the Guatemalan government created the International Commission Against Impunity in Guatemala (CICIG).
LEGAL PROCEEDINGS: THE BEGINNING
The current Guatemalan Genocide Case has been over a decade in the making. In 1999 the Rigoberta Menchú Foundation (RMF) filed a criminal complaint before the Spanish National Court against former president Efraín Ríos Montt and other senior Guatemalan officials charging them with terrorism, genocide and systematic torture. The case was modeled on the Pinochet prosecution and filed in Spain because the Spanish national courts exercise jurisdiction over certain human rights crimes, known as universal jurisdiction. The case was filed in the hope that Guatemalan victims of human rights abuses who were not receiving justice in Guatemala would find some measure of justice in Spain.
RMF invited Almudena Bernabeu, CJA’s International Attorney, to join the case in 2004 because of her record of success on other Central American human rights cases and her connections in the U.S. and Spain. CJA, through Almudena Bernabeu, joined the criminal complaint in 2006. Joining forces with Spanish Criminal Attorney Manuel Olle Sese, Bernabeu signed the pleadings on behalf of two Spanish plaintiffs who were survivors of torture and forced deportation and two Mayan survivors of the Rios Negro and Plan de Sanchez massacres.
Bernabeu’s initial involvement with the case in 2004 was linked to an investigation into the whereabouts of one of the defendants, Donaldo Alvarez Ruiz. CJA and RMF hired an ex-FBI investigator, who eventually found Alvarez Ruiz in Miami and again in Mexico City that year. After discovering his whereabouts, Bernabeu traveled to Spain to meet with the judge and an international arrest warrant was soon issued. Unsurprisingly, the Mexican authorities failed to detain Alvarez Ruiz without explanation.
From 2000 through 2005 the lawyers in Madrid, including CJA’s co-counsel in the case Manuel Olle, engaged in legal battles on jurisdiction and the rights of non-Spanish citizens to bring claims in Spain. After the case was first initiated, the Public Prosecutor filed a motion to dismiss the action claiming that the plaintiffs had not exhausted their legal remedies in Guatemala. The plaintiffs argued that justice in Guatemala was effectively denied because victims and lawyers continued to be threatened while courts regularly refused to pursue the case. In a temporary setback for the case, an en banc criminal chamber of the Spanish National Court ruled on December 13, 2000, in favor of the Public Prosecutor. The plaintiffs appealed this ruling to the Supreme Court in March 2001. On February 25th, 2003, the Spanish Supreme Court, in an 8-7 decision, partially overturned the National Court’s decision. However, the Supreme Court found that only the cases with a close nexus to Spain could proceed. Thus the investigations into the torture and killing of Spanish citizens in Guatemala were reinstated while claims of the Mayan plaintiffs were thrown out. In March 2003 the plaintiffs appealed this decision to the highest appellate court in Spain, the Spanish Constitutional Court.
SPAIN’S HIGHEST COURT GRANTS JURISDICTION
In a groundbreaking decision, on September 26, 2005, the Constitutional Court reversed a lower court ruling that had dismissed the case and held that it was the legislators’ intention to make Spain a country that observes the principles of universal jurisdiction for certain egregious crimes. The decision stated that Spanish Courts will have jurisdiction over crimes of international importance – crimes prosecutable in any jurisdiction as prescribed by international treaties including the Geneva Conventions, the Genocide Convention, and the Convention Against Torture – regardless of the nationality of the victims and perpetrators. In this case the decision meant that the genocide claims of indigenous Guatemalans were reinstated.
After the Constitutional Court’s decision, a new judge was appointed to the case. Judge Santiago Pedraz wasted no time and pursuant to a Rogatory letter previously filed he decided that the defendants needed to be deposed right away in Guatemala.
With the Rogatory Commission on its way to Guatemala in late May of 2006 , Almudena Bernabeu received a phone call from long time Guatemalan Human Rights activist Helen Mack and Professor Roht-Arriaza (Read about Guatemalan Evidence Project, a collaborative effort between CJA, the Myrna Mack Foundation, Professor Roht-Arriaza and the National Security Archive). They insisted she needed to travel to Guatemala immediately to assess the status of the case and the investigation. In June 2006 Almudena traveled to Guatemala to discover that due to the long little legal battle, nothing or very little have been investigated. The Genocide claim against General Efrain Rios Montt and the high command for the killing of Mayan people had been fully reinstated after the High Court’s decision yet the plaintiffs’ case was still undone. Simultaneously, Rios Montt’s attorneys had ferociously opposed the Rogatory. Almudena and Spanish Co-Counsel Manuel Olle received a phone call from the Spanish Judge, per the request of the Guatemalan judge in charge of the execution of the Rogatory, requesting that they file a brief containing all findings of fact and theories of liability for the defendants. Bernabeu, along with Professor Naomi Roht-Arriaza and Attorney Susan Kemp, began compiling information (including research done by the human rights association CALDH) and preparing the brief. On June 18th, 2006, the brief was officially sent to Judge Pedraz’s clerk for admission.
On June 24th, 2006, Judge Pedraz of Spain, along with CJA attorney Almudena Bernabeu and Spanish public prosecutor Jesús Alonso, traveled to Guatemala City to take testimony from the defendants. Upon their arrival, lawyers for the defendants filed several more appeals forcing the Guatemalan Constitutional Court to indefinitely suspend the proceedings. Rios Montt’s attorney filed an appeal to contest the Spanish Judge’s competence to exercise his jurisdiction on Guatemalan soil. The defendants also filed writs of amparo, a technique they continued throughout the case. Throughout most of Latin America, the ability to challenge government action in violation of constitutional rights, known as amparo, is a cherished foundation of individual rights. Unfortunately, it is often used in these cases as simply a tool of delay. On June 28th, 2006, Judge Pedraz and the rest of the Rogatory commission met with Guatemalan government prosecutors. The prosecutors assured them that they would not be able to depose the defendants before their return flight to Spain because appealing the amparo writs would take longer than a week.
At this point, as the trip to Guatemala appeared to be futile, Judge Pedraz indicated that he planned to close the case for lack of cooperation. Bernabeu then urged Judge Pedraz not to close the case and arranged meetings between the Judge and the Board of directors of the Association for Justice and Reconciliation (AJR). The AJR included representatives of the massacres in the Ixil Region, and it was the complainant for a genocide case filed in Guatemalan courts in 2000 and 2001 against many of the same defendants. Among the AJR representatives was CJA’s current client, Jesus Tecu. This meeting marked the beginning of a close collaboration between those involved in the Spanish and Guatemalan variants of the genocide case. On June 26-30, in an attempt to strengthen both the Spanish and Guatemalan genocide cases, Bernabeu held meetings with representatives of national Human Rights organizations in Guatemala.
ARREST WARRANTS ISSUED
On July 1st, 2006 (Opinion dated June 27, 2006) the Guatemalan Constitutional Court rejected Rios Montt’s writ of amparo and recognized the Spanish Judge’s jurisdiction. On July 7, 2006, after returning to Spain, Judge Pedraz issued a writ of findings of fact and conclusions of law, ordering arrests and freezing the assets of all the defendants. In explaining his decision to issue the warrants, Judge Pedraz said his decision was based on the “obstructionist attitude of the defendants and because there is sufficient evidence that the crimes of genocide, terrorism, torture, murder and illegal detention were committed by the defendants.” On August 8, 2006 the international arrest warrants against all defendants were filed via INTERPOL. CJA led the effort to assure that the warrants are executed and that proper requests for extradition are filed. At that moment, CJA, with Bernabeu as lead counsel, put together a legal team with attorneys from Guatemala, the Netherlands, Spain and the U.S. to present evidence to Judge Pedraz in the case and to prove genocide.
On November 6, 2006, four of the arrest warrants were finally accepted by the Guatemalan courts and the extradition proceedings started. In an unprecedented development, two of the defendants were arrested. Four of the eight defendants, including Efrain Rios Montt, retained counsel and filed several constitutional appeals in order to prevent their extradition. Angel Anibal Guevara was arrested; German Chupina Barahona was held in police custody at a hospital; Pedro Garcia Arredondo and Oscar Humberto Mejia Victores fled, but Arredondo was eventually arrested and prosecuted for the killing of student leader Fernando Garcia . Benedicto Lucas Garcia and Efrain Rios Montt challenged the arrest warrants in the Guatemalan courts and were able to remain free. Romeo Lucas Garcia is deceased and the eighth defendant, Donaldo Alvarez Ruiz, fled Mexico and is currently hiding in Panama.
Also in November, 2006, Judge Pedraz filed formal extradition requests against the defendants, based on the July arrest warrants and pursuant to the extradition treaty between Guatemala and Spain that dates back to 1895. On November 17, 2006, Angel Anibal Guevara filed another amparo writ challenging the November 6th decree ordering his arrest. The other defendants ordered arrested filed similar appeals, which argue that their constitutional rights have been violated because they can only be tried or extradited to a competent court; they argued that the Spanish Court is not “competent” because it has no jurisdiction. Rios Montt filed a pre-emptive appeal on similar grounds.
In March 2007, CJA filed an amended complaint with the Spanish National Court on behalf of CJA’s new clients, Jesus Tecu Osorio and Juan Manuel Jeronimo, both survivors of massacres carried out by the Guatemalan army in the Baja Verapaz area in 1982. Later, in 2008, survivors from the Ixil region and AJR members Tiburcio Utuy and Antonio Caba, also joined the compliant.
GUATEMALAN COURTS REVERSE COURSE
CJA actively litigated the enforcement of the arrest warrants against Ríos Montt and the other senior officials charged. Throughout most of 2007, CJA prevailed in all appeals filed by the defendants to nullify the arrest warrants. CJA also continued to coordinate the gathering of evidence and witness testimony for the investigative phase of the case before the Spanish National Court. Then, in December 2007, the Guatemalan high court (GCC) reversed itself unexpectedly and held that the arrest warrants and extradition requests were invalid. It held, among other things, that it would not recognize the universal jurisdiction of a national court and that Guatemala’s extradition treaty with Spain did not allow the extradition of nationals.
As a result, in January of 2008 Judge Pedraz issued a ruling strongly condemning Guatemala’s lack of cooperation, its seeming abandonment of human rights, and its violations of its obligations under customary and conventional international law. He also wrote that, although he would no longer rely on the Guatemalan courts, the recent GCC decision showed the continued need for Spanish judicial authorities to investigate the alleged crimes. Judge Pedraz then issued an international call to invite witnesses to travel to Madrid to present evidence on the genocide. CJA had previously received permission from the court to bring 40 individual witnesses to testify in Spain in three separate groups due to safety concerns. After the judge’s call, many more witnesses, including Rigoberta Menchú, traveled to Madrid to give evidence.
CJA, as lead counsel, organized two delegations of witnesses. The first group testified in February 2008 and included fifteen survivors and three experts. The eyewitnesses detailed massacres, rape, torture, bombings and persecution of survivors, destruction of crops and livestock, and targeting of Mayan religious practices and community authorities. They also named specific military officials, including the defendants, and specified their role in the crimes. The presentation of the testimony was a historic moment for the Mayan survivors as it represented the first time a national court had allowed them to present evidence of the campaign of torture, rape and killing perpetrated against their communities in the early 1980’s. Because of the refusal of Guatemalan courts to prosecute those responsible for the genocide, the Guatemalan Genocide Case in Spain became a critical avenue of justice for these survivors. While most of the witnesses’ identities were kept confidential due to security concerns, CJA clients Jesus Tecú Osorio, survivor of the Rio Negro massacre and winner of the Reebok Human Rights Award, and client Juan Manuel Jeronimo, survivor of the Plan de Sanchez massacre, testified publicly. The second group testified in May 2008 and included five survivors and the anthropologists Ricardo Falla Sanchez, as well as Professor Charles Hale from University of Texas at Austin and Professor Beatriz Manz from Berkeley.
SUPPORT FROM THE INTERNATIONAL COMMUNITY
The international pressure surrounding the delegations and the case in Spain led to pressure inside Guatemala, and in February of 2008 then Guatemalan President Alvaro Colom announced that he would order the military to open up its archives from the civil war period and turn them over to the Human Rights Ombudsman. Furthermore, in a surprising move, in April of 2008 a Guatemalan trial judge decided that he would honor Judge Pedraz’s repeated requests for a Rogatory commission to interview witnesses. The judge reasoned that the GCC’s decision had no bearing on obligation or ability to cooperate with international judicial authorities, and that although he could not allow Judge Pedraz to come interview the witnesses in Guatemala (pursuant to the GCC decision) he could interview the witnesses himself and forward the results to Spain. He even arranged to pay transportation costs for those witnesses who said they could not afford to come to the capital. More amparo claims arrived from the defendants but the judge dismissed all of them.
CJA continued to work closely with Judge Pedraz to reinvigorate the investigation. We sponsored the testimony of more than 60 fact and expert witnesses, including Rigoberta Menchú Tum; Cristian Tomuschat, the president of the Historical Clarification Commission (Guatemala’s Truth and Reconciliation Commission); and over 30 survivors of the genocide. Fredy Peccerelli, a Forensic anthropologist and president of the Forensic Anthropology Foundation of Guatemala, testified for the first time in his professional life as an expert witness about the exhumation of more than 400 mass graves performed by his team over the past 15 years; the exhumations performed by Peccerelli’s team included over 200 massacres not included in Guatemala’s Truth and Reconciliation Commission Report. CJA also introduced an original military document known as “Plan Sofia,” a detailed plan from 1982 that largely implicates the army and the Guatemalan High Command in the massive killing of civilians.
CJA has amended the complaint three times to include new claims. First, in 2007 we added Jesús Tecú Osorio and Juan Manuel Jerónimo as plaintiffs, two well-known survivors of 1982 massacres carried out by the Guatemalan army in Baja Verapaz.
Second, in May 2010, in partnership with Women’s Link Worldwide, we sought to amend the complaint to include claims of gender violence under international criminal law to ensure that the truth is told about the role that gender violence played in the Guatemalan genocide. . This decision represents the first time that gender violence has been included as an element of a criminal genocide claim in a national human rights prosecution.
As part of the effort, international legal expert Patricia Sellers and Guatemalan prosecutor María Eugenia Solís both provided expert and factual testimony. In July 2011, the judge granted our request and issued an unprecedented decision that establishes that the Guatemalan army used rape and other sexual violence as part of their strategy to wipe out the Mayan people
Third, also in July 2011 the Judge accepted our request to amend the complaint to include Jorge Vinicio Sosa Orantes as a defendant for his role in the Dos Erres Massacre. Sosa Orantes, a dual U.S. and Canadian citizen, was charged with genocide, torture and extrajudicial killing. Sosa Orantes was a member of an elite military unit known as Kaibiles that was responsible for numerous massacres. Sosa Orantes fled to the U.S. almost 20 years ago and became a citizen in 2008. Judge Pedraz initiated the extradition process and has forwarded the first round of extradition paperwork to the U.S. (See below). At that time, Sosa Orantes fled to Canada. After receiving the extradition request from Judge Pedraz, the United States began investigating Sosa Orantes for immigration fraud and perjury because he lied about his involvement in the Guatemalan military and human rights abuses. Canada then arrested Sosa Orantes and weighed extradition requests from Guatemala, Spain and the United States. In September 2011 a Canadian judge ruled that Sosa Orantes would be extradited to the United States on charges of immigration fraud, but not to Spain or Guatemala. Unfortunately, despite implicitly accepting his liability for the events underlying the claims in the Genocide case, the United States does not seem poised to prosecute him for those heinous crimes. In September of 2012 Canadian officials transferred custody of Sosa Orantes to the United States, where he is currently awaiting sentencing on immigration charges. Spain has requested his extradition from the United States to stand trial in the Guatemalan genocide case, but it seems that the United States has chosen to prosecute him for immigration violations instead of extraditing him to Spain.
CRUCIAL EVIDENCE ADMITTED IN SPAIN
In 2009, at the request of Almudena, film maker Pamela Yates traveled to Madrid to testify and introduce into evidence film footage she took of then General Ríos Montt in 1981 during the height of the conflict in Guatemala. In the footage, Ríos Montt admits that he had command and control over the troops that committed mass human rights abuses. Ms. Yates also provided an eye-witness account of the atrocities. This experience became the basis for a documentary that premiered at Sundance in January of 2011. The movie, Granito, highlights CJA’s Guatemala Genocide Case and the work of CJA Attorney Almudena Bernabeu and Advisory Council Member Naomi Roht-Arriaza.
CJA sponsored three more rounds of testimony in 2011. The first two rounds were held in March and June. The following witnesses testified: former Guatemalan sergeant and member of the Body of Engineers in Nebaj and Ixil during the 1981 massacres; Patricia Sellers and María Eugenia Solís who testified about gender violence (see above).
CJA is also working with Guatemalan NGOs as well as Spanish and Mexican authorities to allow for the exhumation of more than 200 bodies of victims of the Guatemalan conflict, mostly women and children, buried in the mass graves of refugee camps in southern México.
GUATEMALA NATIONAL COURT GENOCIDE PROSECUTION AGAINST RIOS MONTT
In 2011 CJA redirected our litigation efforts from the case pending in
Spain in order to work more directly to support the national genocide
case in Guatemala that was filed against former General Efraín Ríos
Montt and others. Guatemalan Attorney General Claudia Paz y Paz was
elected in 2010 and has made unprecedented strides in the prosecution of
those responsible for human rights abuses. Having being informed about
the progress of the investigation and evidence in Spain, Paz y Paz
invited CJA to play a more active role to support the national
prosecution of the genocide case in Guatemala. For the past year, we
have been working closely with the prosecutors to help develop the case
from drafting legal briefs to preparing experts. We have also shared
all of our expert reports and evidence from the case in Spain.
On
January 26, 2012, Paz y Paz indicted former dictator General Efraín
Ríos Montt for genocide for his role in the "scorched earth" campaign
during the country’s civil war in the 1980s. The accusations include
torture, genocide, forced disappearances, state terrorism and crimes
against humanity. Due to the coordinated effort between Guatemalan
lawyers and CJA and our desire to serve both justice efforts in Spain
and Guatemala, the legal strategy disclosed later by the AG’s office
mirrored the strategy presented in Spain including all the expert
witnesses. Two key pieces of evidence that Paz y Paz introduced to
support the indictment that have been secured by CJA’s team are Fredy
Peccerelli’s work and the film footage of Rios Montt admitting that he
had command responsibility.
After the indictment, CJA
has continued to assist the prosecution. For example, we helped develop
four expert witnesses’ reports, which were filed in April 2012. Three
of the reports are based upon evidence previously introduced in the case
in Spain. They are from the following country experts: Charlie Hale
of the University of Texas, Beatriz Manz of U.C. Berkeley and Marta
Casaus of the Autonomous University of Madrid. The fourth expert report
was prepared by Juan Méndez, U.N. Special Rapporteur on Torture.
On Monday January 28th, 2013, Guatemalan Judge Miguel Angel Gálvez
ordered Rios Montt and his intelligence chief, José Mauricio Rodríguez
Sánchez, to stand trial for genocide and crimes against humanity. A
three judge panel will begin hearing evidence against Rios Montt on
Thursday March 19 2013. CJA’s international attorney, Almudena Bernabeu,
will serve as technical advisor to the Prosecutor and the plaintiffs’
lawyers during the entire trial.
CJA has been an instrumental part in a 13 year international collaboration to hold Guatemalan officials responsible for the crimes they committed during the Guatemalan Civil War. Lawyers from Guatemala, Spain, the United States and Europe have joined forces with domestic and international human rights organizations, victims advocacy groups, and scholars to bring cases in both Spain and Guatemala.
