Impunity in Guatemala: The
State’s Failure to Provide Justice in the Massacre Cases
Nathanael Heasley
Rodger Hurley
Kara E. Irwin
Andrew H. Kaufman
Nadine Moustafa
Alain Personna*
PREFACE................................................ 1118
INTRODUCTION......................................... 1120
I. GUATEMALA’S LEGAL OBLIGATION TO PROVIDE
TIMELY JUSTICE IN THE MASSACRE CASES......... 1123
A. International
Law............................. 1124
1. International Treaties............................... 1124
2. Customary International Law........................ 1127
B. Domestic
Law.................................... 1129
C. Peace
Accords................................... 1130
D. The
Friendly Settlement Agreement......... 1132
II. RECENT REFORMS OF GUATEMALA’S JUSTICE
SYSTEM.............................................. 1133
III. OBSTACLES TO THE FULFILLMENT OF
GUATEMALA’S LEGAL OBLIGATIONS................ 1135
A. Introduction.................................... 1135
B. The
Obstacles to Justice....................... 1136
1. Intimidation........................................ 1136
a. Threats Against the Judiciary......................... 1137
b. Threats Against the Ministerio Público................. 1140
c. Threats Against Witnesses and Human Rights
Groups... 1143
d. Recommendations.................................. 1145
2. Corruption......................................... 1146
a. Corruption in the Judiciary........................... 1147
i. Bribery........................................... 1147
ii. Political Corruption / Trafficking of
Influence....... 1149
b. Corruption in the Ministerio Público................... 1150
c. Corruption of Witnesses by the Military............... 1153
d.
Non-Prosecution of Corruption...................... 1153
e.
Recommendations.................................. 1154
3. Incompetence...................................... 1156
a.
Incompetence in the Ministerio Público................ 1156
b.
Incompetence in the Judiciary........................ 1160
c.
Recommendations.................................. 1163
4. Financial and Technical Resources................... 1164
a.
Lack of Financial and Technical
Resources............. 1164
b.
Coordination of Institutions and
Resources............. 1166
c.
Recommendations.................................. 1169
5. The Inappropriate Classification of Military
Secrets.... 1170
a.
Military Culpability in the Massacre Cases............. 1171
b.
Lawmaking and Military Secrets...................... 1172
c.
The Role of Judges and Prosecutors.................. 1174
d.
Recommendations.................................. 1175
6. Misuse and Failure to Utilize Procedural
Mechanisms.. 1176
a.
Failure to Efficiently Process Amparo
Challenges....... 1177
b.
Identification of Victims............................. 1178
c.
Certification of Conviction........................... 1180
d.
Plea bargaining.................................... 1181
e.
Recommendations.................................. 1183
IV.
SUMMARY OF RECOMMENDATIONS................ 1185
A.
Recommendations
to Address Obstacles to Justice 1185
1. Intimidation........................................ 1185
2. Corruption......................................... 1185
3. Incompetence...................................... 1186
4.
Resource Management and
Coordination/Lack of
Resources.......................................... 1187
5.
Definition of Military Secrets and
Declassification..... 1187
6.
Misuse and Failure to Utilize Procedural
Mechanisms.. 1188
B. Conclusion...................................... 1188
V. PERSPECTIVES FOR THE FUTURE: RECENT
DEVELOPMENTS THAT COULD AFFECT
PROSECUTION OF THE MASSACRE CASES........... 1189
From
March 8 to March 20, 2000, a seven-person delegation of lawyers and law
students visited Guatemala to research the progress of high-profile massacre
cases through the Guatemalan legal system. Throughout the report where mention
is made to “the delegation,” it is in reference to this group. Members of the
delegation traveled widely in Guatemala, meeting with government officials,
prosecutors and other attorneys, human rights advocates, and members of the judiciary,
the military, Congress, and exhumation teams. The information contained in this
report is as of March 2000. While some updates have been added since then, the
report may not reflect all recent developments.
Before
traveling to Guatemala, the delegation did extensive research into the history
of Guatemala, the structure of the Guatemalan government, the history of the
internal armed conflict, the recent reforms in the justice system, the
international obligations of Guatemala and other relevant topics. The team used
sources from Guatemala and the international community. Of particular help were
Guatemala: Never Again!, the report
of the Recovery of Historical Memory Project (“REMHI”), by the Archdiocese of
Guatemala, and Guatemala: Memory of
Silence, the report of the
Historical Clarification Commission (“CEH”), a U.N.-sponsored truth commission.
While not universally accepted, especially by parts of the military and the
business sector, the REMHI and CEH reports are widely acknowledged as
authoritative sources of information on the atrocities committed during the
internal armed conflict.
Although
REMHI documented over 400 massacres, the delegation focused on four specific
massacres: Rio Negro, Plan de Sánchez, Dos Erres, and Cuarto Pueblo. The
delegation chose these cases because they were representative as to the actors
involved, the scope of alleged atrocities, and the actions or lack thereof
taken to resolve them following the end of the internal armed conflict. They
also provide examples of cases in different stages of the judicial process, and
of problems that judicial actors encountered at each stage of the investigation
and prosecution of the massacre cases. The report also draws, where
appropriate, on other cases that highlight particular problems. Through analysis
of these cases, and wide-ranging interviews in Guatemala, the delegation was
able to identify a broad range of problems that exist in the judicial system.
This report focuses on these problems and the ways they contribute to the
substantial delays in prosecuting those responsible for the atrocities of the
internal armed conflict, and offers recommendations for overcoming those obstacles.
While
in Guatemala, the delegation conducted over fifty interviews in Guatemala City
and in the towns of Salama, Rabinal, Cobán, Flores, and San Benito with local
prosecutors, judges, human rights advocates, survivors and relatives of victims
of the massacres, and witnesses to the massacres. The interviewees were chosen
based on their knowledge of relevant aspects of massacre cases, or their
knowledge of the justice system or the government as it relates to the
prosecution of massacre cases. These interviews served as a major source for
this report.
The
delegation recognizes that there have been significant reforms in the
Guatemalan justice system since the end of the internal armed conflict. It is
the hope of the delegation that this report will be of use in addressing the
problems that continue to exist despite these reforms.
The helicopter came and flew
over Cuarto Pueblo. At first, the people were frightened and left, but then the
helicopter flew off and the people came back to the market. They didn’t realize
that the soldiers were approaching and surrounding the people. They had them
congregated there for about two days. And the soldiers put wires red, red hot
from the fire into them, stuck into their mouths and all the way down into
their stomachs. They kicked others, not caring if it was a little child or a
woman, or if she was pregnant. They didn’t spare anyone there. – Case 920, Cuarto Pueblo, Ixcán, Quiche,
1982.[1]
During
Guatemala’s thirty-six year internal armed conflict, the Guatemalan military
reportedly committed the vast majority of the 422 documented massacres,
including that of Cuarto Pueblo where the military allegedly slaughtered over
three hundred people as part of a counterinsurgency operation in 1982.[2] Under international and domestic
law, Guatemala has a duty to investigate and a duty to provide an effective
remedy for victims of the massacres by prosecuting the perpetrators of the
massacres and providing reparations to the victims.[3]
The State has failed to fulfill this duty to provide timely justice. In only
one massacre out of these 422 documented massacres, the Rio Negro massacre, has
anyone been tried and convicted. Those convicted, sixteen years after the
events occurred, were low-level participants in the massacre and neither
planned nor ordered the killings.[4]
This
report examines the Guatemalan State’s failure to fulfill its legal duty to
investigate and provide an effective remedy for violations of the right to life
in the massacre cases.[5]
Beyond documenting this failure, the report identifies six specific obstacles
that prevent the State from meeting its international obligations. Those
obstacles are as follows:
1.
intimidation of witnesses and officials;
2.
corruption of officials;
3.
incompetence of officials;
4.
inadequate resources and resource management;
5.
the lack of a definition of military secrets; and
6.
misuse and failure to utilize procedural mechanisms.
The
report illustrates these obstacles by using examples from the four massacre
cases of Plan de Sánchez, Rio Negro, Dos Erres, and Cuarto Pueblo, as well as
several other cases in which State actors allegedly violated the right to life.
Finally, the report offers suggestions for overcoming the obstacles.
The
four massacres discussed in this report occurred between 1980 and 1983, the
bloodiest period of the internal armed conflict, known in Guatemala as la violencia.[6] During la violencia, the Guatemalan army, under the direction of
successive military dictators, carried out a brutal counterinsurgency policy to
fight against the perceived threat of guerrilla insurgents. The hallmark of the
army’s counterinsurgency program was a “scorched earth” policy, in which the
army burned indigenous Mayan villages and massacred or forcibly moved their
inhabitants.[7]
During
the Guatemalan peace negotiations and following the end of the conflict in
1996, quasi-governmental organizations and NGOs began to investigate the acts
of violence committed during the conflict. The investigations included
exhumations of clandestine mass graves in small villages around the Guatemalan
countryside by forensic anthropologists.[8] These investigations have produced
data substantiating allegations of widespread violations of the right to life.
The data, compiled in large part by the two truth commissions, the United
Nations-led Commission for Historical Clarification (“CEH”), and the Catholic
church-sponsored Recovery of Historical Memory Project (“REMHI”), indicate that
approximately 150,000 people were killed and approximately 50,000 people were
“disappeared” over the course of the conflict.[9]
REMHI
compiled information on a total of 422 massacres in which approximately 14,000
victims were murdered.[10] The
REMHI Report also concluded that the army or state-backed paramilitary forces
committed 90.52 percent of those massacres while the guerrillas committed the
remaining 9.48 percent.[11] The victims of the massacres were
mostly civilians.[12]
Under
both international and domestic law, Guatemala is bound to investigate these
violations of the right to life and provide an effective remedy by bringing the
perpetrators to justice.[13]
The State has yet to initiate prosecutions in the vast majority of these
massacre cases. For many years, particularly during the conflict, the State’s
criminal justice system was incapable of delivering justice because of a variety
of institutional problems.[14] During the last decade, however, the
Peace Accords, completed in 1996, along with a number of institutional and
legislative reforms, have strengthened Guatemala’s judicial system.[15]
Although the Guatemalan judicial system has made great strides, at least
on paper,[16] the human rights violators responsible
for the massacres continue to enjoy impunity for their actions.
Part
I of this report discusses Guatemala’s international and domestic legal
obligations to investigate violations of the right to life. Part II briefly
describes recent reforms of Guatemala’s legal system. Part III identifies six
specific obstacles that prevent the State from providing timely justice. The
Report analyzes each obstacle by using examples from the Plan de Sánchez, Rio
Negro, Dos Erres, and Cuarto Pueblo massacre cases as well as other
high-profile cases. Part IV summarizes the delegation’s recommendations to the
State for overcoming the obstacles and complying with its obligations to
provide justice in the massacre cases. Part V looks at recent developments in
Guatemala and their implications for resolution of the massacre cases.
I. Guatemala’s LEGAL OBLIGATION to Provide TIMELY
Justice in the Massacre Cases
Guatemala
is legally obligated to investigate the massacres,[17] prosecute the perpetrators,[18] and make reparations to the victims’
families[19]
in accordance with multiple legal mechanisms. Guatemala’s legal obligation to
investigate and provide an effective remedy in the massacre cases comes from
the international treaties to which it has acceded, customary international
law, and domestic law. The Peace Accords the State signed with the guerrillas
at the end of the internal armed conflict and the friendly settlement
agreements being negotiated under the auspices of the Organization of American
States (“OAS”) may provide additional sources for this legal obligation. This
section reviews these legal obligations as they apply to the prosecution of the
massacre cases.
Guatemala
is party to treaties that obligate it to investigate violations of the right to
life and to provide effective remedies for those violations.[20] Such treaties include the
International Convention on Civil and Political Rights (“ICCPR”),[21]
the American Convention on Human Rights (“American Convention”),[22]
and the Convention on the Prevention and Punishment of Genocide (“Genocide
Convention”).[23] Additionally, the case law of the
Inter-American Court of Human Rights (the “Inter-American Court”) binds the
Guatemalan State following the accession of Guatemala to the jurisdiction of
the Court in 1987.[24]
Article
2(3) of the ICCPR obligates Guatemala to provide victims of human rights
violations with an effective and enforceable remedy for those violations.[25]
Guatemala did not become a signatory to the ICCPR until 1992, so the massacres
that occurred in the early 1980’s could not be considered violations of the
right to life under Article 6 of the ICCPR. Nevertheless, the massacres
constituted violations of the right to life as articulated in several other
documents (including the American Convention and the Guatemalan Constitution).
Guatemalan citizens have had the right to an effective remedy for those claims
under Article 2(3) of the ICCPR since 1992.[26]
Therefore, Guatemala’s failure to provide an effective remedy in almost all of the
massacre cases is a violation of Article 2(3) of the ICCPR.
Similarly,
the American Convention and the case law interpreting it obligate the State to
protect the right to life[27] and to prosecute perpetrators who
violate that right.[28]
Article 25 requires the State to provide victims of human rights violations
“simple and prompt recourse . . . to a competent court and an
effective remedy for those violations.”[29]
Article 1(1) obliges States to ensure the free and full exercise of the rights
recognized under the American Convention to all persons in their jurisdiction.[30]
In Velasquez-Rodriguez v. Honduras,
the Inter-American Court interpreted Article 1(1) of the American Convention to
require States to investigate every situation involving a violation of the rights
protected by the Convention.[31] The
Court further expanded the duty under Article 1(1) to require the State to
“attempt to restore the right violated and provide compensation as warranted
for damages resulting from the violation.”[32]
Finally,
to the extent that the massacres constituted genocide,[33]
Articles IV and VI of the Genocide Convention subject the Guatemalan State to
certain requirements. Article IV requires the State to punish perpetrators of
genocide, whether those perpetrators are heads of state, public officials or
private individuals.[34]
Article VI requires that competent courts of the State judge those alleged to
have committed acts of genocide.[35]
2. Customary
International Law
In
order to supplement the more general language of human rights treaties, the
United Nations[36]
has developed a large body of materials including the U.N. Principles on the
Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary
Executions (“U.N. Principles”),[37] and the U.N. Manual on the Effective
Prevention and Investigation of Extra-Legal, Arbitrary and Summary Executions
(“U.N. Manual”).[38] These materials describe methods for
combating impunity and addressing extra-legal, arbitrary, and summary executions.
Although not directly binding on States, these materials are evidence of
customary international law and provide persuasive authority that supplements
the broader treaty terms that bind governments.[39]
According
to the U.N. Principles and the U.N. Manual, the Guatemalan State is responsible
for providing thorough, prompt, and impartial investigations of the massacre
cases by competent investigators who have adequate authority to conduct
effective investigations.[40]
Prosecutions should follow the investigations of the perpetrators and should
involve the families of the deceased and their legal counsel.[41]
The U.N. Principles prohibit the use of blanket immunity and the defense of
superior orders, whereby troops blame their commanding officers for violations.[42]
Furthermore, commanding officers and other public officials may be held
responsible for their subordinates’ violations where there was a reasonable
opportunity to prevent those violations.[43]
The
United Nations Special Rapporteur on Arbitrary and Summary Executions (“Special
Rapporteur on Executions”) has stated that governments have an obligation to
conduct exhaustive and impartial investigations of alleged violations of the
right to life, to identify and prosecute perpetrators, to compensate victims’
families, and to prevent future violations.[44]
Furthermore, governments have the duty to prosecute not only those who planned
and carried out alleged arbitrary or summary executions, but also those in
positions of authority who failed to prevent them.[45]
Like the United Nations materials described above, the findings of the Special
Rapporteur on Executions are evidence of customary international law.
The
State also has a legal obligation to investigate and prosecute the perpetrators
of the massacres under its domestic law. The Guatemalan Constitution, in its
Preamble, expresses a commitment “to promote the complete implementation of
Human Rights.”[46] More specifically, other Articles of
the Constitution recognize the following principles: the State’s duty to
guarantee justice (Article 2); every individual’s right of free access to
tribunals in order to claim his or her rights under the law (Article 29); the
ability to prosecute human rights violators by filing a complaint (Article 45);
adherence to the rule of law (Article 153); the principle that State officials[47] are “subject to the law and never
above it” (Article 154); joint State liability for the acts of its agents
(Article 155); the independence of the judiciary and its capacity to render and
execute judgments (Article 203); and, the primary goal of the Ministerio
Público [Public Ministry], to oversee “strict fulfillment of the country’s
laws” (Article 251).
In
addition, the Guatemalan criminal procedure code mandates that human rights
protected by the Constitution and international treaties must be respected in
all judicial proceedings.[48] It also empowers the Ministerio
Público to investigate any crime and
to prosecute anyone guilty of that crime[49]
and guarantees the continuity of the prosecution to its end.[50]
Further, the penal code has been interpreted to require the State to provide
justice in a timely manner, acknowledging that “tardy justice is the equivalent
to a denial of justice.”[51]
The
Guatemalan Peace Accords between the State and the coalition of the guerrilla
organizations, the Unidad Revolucionaria Nacional Guatemalteca, were concluded
in 1996. Twelve individual agreements make up the Peace Accords, which were
finalized with the December 29, 1996 signing of the final agreement, the Accord
for a Firm and Lasting Peace.[52] The
commitments undertaken by the State in the Peace Accords have implications for
the massacre cases because they may be evidence of a legal obligation.
For
example, Sections III and VIII of the 1994 Comprehensive Agreement on Human
Rights, one of the agreements that make up the Peace Accords, commit the State
to combat impunity and to provide compensation and assistance to the victims of
human rights violations.[53] The Agreement on the Strengthening
of Civilian Power and on the Role of the Armed Forces in a Democratic Society
recognizes the importance of overcoming “deficiencies and weaknesses in civil
institutions,” including corruption, lack of coordination of the branches of
government, inefficiency in government institutions and administrative problems
within the judiciary.[54] The
same agreement also identifies the need for a judicial process that serves as
“an instrument for ensuring the basic right to justice.”[55]
President
Alfonso Portillo, in his January 2000 inaugural address, reinforced the
commitments expressed in the Peace Accords by announcing that his Government
would assume the implementation of the Peace Accords as a policy of the State.[56] This action clarifies that the Peace
Accords are an agreement[57]
between the State and the guerrillas, rather than between only the
administration that signed them and the guerrillas.
D. The Friendly Settlement Agreement
NGOs
have brought cases on behalf of victims of massacres and extra-judicial
killings before the Inter-American Commission on Human Rights (“IACHR”),
alleging violations of the right to life and requesting a remedy for those
violations.[58] In a recent development, the
Guatemalan State entered into friendly settlement negotiations with plaintiffs
in forty-four of the cases brought before the IACHR.[59] As part of the negotiations, the
State has expressed its intent to sign an agreement requiring it to fulfill
three broad commitments: (1) to advance truth in
the cases, the State must accept and has already accepted responsibility for
violations of the right to life in the forty-four cases; (2) to achieve justice
in those cases, the agreement will require the State to pursue domestic
prosecutions of the perpetrators; and (3) the State must compensate the
families of victims in the massacre cases and in other, extra-judicial
killings.[60]
The
IACHR will oversee the State’s compliance with these commitments.[61]
Currently, the State is in the process of negotiating individual reparation
agreements with the victims or their representatives in these cases.[62]
These positive steps, however, do not relieve the State from its responsibility
to pursue domestic criminal prosecutions in each of the cases. In fact, the
State’s forthcoming commitment in the friendly settlement to pursue
prosecutions domestically in these cases only strengthens its preexisting legal
obligation to do so. The individual settlements that may eventually be reached
between the State and each of the forty-four individual plaintiffs would
represent settlements of the petitions before the IACHR. These settlements would
have the finality of a decision of the IACHR.[63]
The effects of the State’s commitments remain to be seen, however, because the
Executive branch will have made the commitments encompassing the friendly
settlement without the involvement of the Ministerio Público,[64] the prosecutorial arm of the
government.
II. RECENT
REFORMS OF GUATEMALA’S JUSTICE SYSTEM
In
recent years, Guatemala has reformed procedural aspects of its criminal justice
system by enacting the Codigo Procesal
Penal (“CPP”), a new criminal procedure code, and by restructuring State
institutions. Congress enacted the CPP in 1994, which converted the criminal
justice system from an inquisitorial to an adversarial system.[65] At the same time, the Ministerio
Público was reorganized and given substantial independence from the Executive
branch.[66]
Part of that reorganization included increasing the number of prosecutors in
the Ministerio Público from
approximately thirty in 1994 to over 700 today.[67] The State has also recently
restructured and improved the police forces, instituting the Policia Nacional Civil (“PNC”), the National
Civilian Police. The PNC replaced former police forces, which were tainted by
corruption and military infiltration.[68]
The U.N., the European Union, and the United States have provided extensive
amounts of international aid targeting these and further justice reform efforts
in Guatemala.[69]
The
reforms and initiatives noted above indicate that Guatemala has improved its
justice system, at least on paper.[70] The current system, therefore, theoretically
provides a means for the State to fulfill its legal obligation to provide
timely justice in the massacre cases. The State, however, has largely failed to
put the system into practice.[71] The
challenge for Guatemala is not a radical restructuring, but rather to make its
practices conform to the principles of justice already established.
III. OBSTACLES TO THE FULFILLMENT OF GUATEMALA’S
LEGAL OBLIGATIONS
Under
international and domestic law, the Guatemalan State has a legal duty to investigate
and provide an effective remedy in the massacre cases.[72]
The State’s failure to comply with its duty to date has perpetuated a culture
of impunity in which State agents who were responsible for the massacres need
not fear punishment.[73] The
unchallenged power of military and paramilitary forces that regularly performed
clandestine operations gave rise to this culture of impunity.[74]
Many of the intellectual authors of the violence retain power and status and
remain free from investigation and prosecution.[75]
The
delegation, through its interviews and research, has identified a number of
specific obstacles that prevent investigation and effective remedy in the
massacre cases. The obstacles are as follows: (1) intimidation of witnesses and
officials; (2) corruption of officials; (3) incompetence of officials; (4)
inadequate resources and resource management; (5) the lack of a definition of
military secrets; and (6) misuse and failure to utilize procedural mechanisms.
This part of the report discusses these obstacles in the context of several
massacre cases including Plan de Sánchez, Rio Negro, Dos Erres, and Cuarto
Pueblo, and recommends State responses to deal with them.
One
of the chief causes of the State’s failure to investigate and provide an
effective remedy in the massacre cases is intimidation of and threats against
officials in the justice system and against witnesses.[76] Threats mainly come from former
military personnel and former members of the now dissolved paramilitary Civil
Patrols (“PACs”) who fear prosecution.[77] Such threats affect the judicial process
by reducing the will of prosecutors and judges to pursue cases vigorously and
to adjudicate them impartially.[78]
Threats against witnesses deter them from testifying and from urging prosecutors
to move cases forward.
As
part of the Guatemalan State’s obligations under international law to promote
timely justice in the massacre cases, the State has several specific
obligations requiring it to combat intimidation. First, threats against the
judiciary violate the U.N. Basic Principles on the Independence of the
Judiciary.[79]
Second, threats against lawyers or witnesses violate the U.N. Principles.
Article 15 of the U.N. Principles calls for the protection of witnesses,
complainants, and families of victims.[80]
Article 4 requires that prosecutors be permitted to perform their functions
without intimidation or improper interference.[81]
In addition, the U.N. Principles obligate prosecutors to prosecute cases of
corruption and threats against judges, lawyers, and victims.[82]
a. Threats Against the Judiciary
Substantial
evidence suggests that threats against judges are common and affect all levels
of the judiciary, including local judges in the Courts of First Instance,[83]
Appeals Court judges, and Supreme Court Justices.[84] In the past three years, more than
160 judicial officials have complained to the Supreme Court about receiving
death threats.[85]
Judges presiding over cases involving military defendants have had threats
mailed and phoned in to them,[86] and
mock bombs delivered,[87] all with the implicit or explicit
threat that they would be killed if they continued on the case.
The
frequency and effect of such threats against the judiciary is difficult to
measure. Many threats go unreported and judges are reluctant to acknowledge
actions taken in response to threats. Even so, there are relatively visible
responses of judges to threats, including resignations, requests for transfers,
or recusal from cases.[88] It is clear from the number of
threats and the reaction of some judges that the prosecution of massacre cases
has been adversely affected.[89] The progress of court cases has been
slowed and, in some instances, evidence has been suppressed and defendants
freed as a result of the threats.[90]
According to Jorgan Andrews, United States Department of State Human Rights
Officer, these failures of the judiciary are attributable to continued threats
from the military; “[a] military legacy [of intimidation] explains the timidity
of the judiciary.”[91]
For
instance, Judge Henry Monroy, the presiding judge on the Myrna Mack
investigation, was threatened after ordering three senior military officials to
stand trial for the murder of Myrna Mack.[92]
Ms. Mack, a Guatemalan anthropologist, was allegedly murdered by a member of
the Estado Mayor Presidencial
(“EMP”), the Presidential General Staff, and another assailant, in retaliation
for her fieldwork on the massacres of indigenous communities by the military
during the counterinsurgency.[93]
Because of the threats, Judge Monroy subsequently resigned, significantly
slowing the advancement of that case.[94]
In
a more extreme example, one judge on the Rio Negro massacre case was almost
killed, apparently by an army-backed mob.[95] That case stems from an alleged
massacre by the Guatemalan military and PACs in the village of Rio Negro.[96]
The military and PACs allegedly killed approximately 250 people, a significant
portion of the village’s population.[97]
The case did not progress until three of the former PACs were caught attempting
to cover up evidence in the mass graves.[98] Once incarcerated for the
crime of grave robbing, they were charged with and convicted of murder for
their role in the Rio Negro massacre, for which the court sentenced them to
death.[99]
An appellate court subsequently overturned the convictions and remanded the
case for retrial.[100]
During
the September 1999 retrial of the three defendants, over 200 men arrived armed
with clubs and stones at the courthouse in military vehicles.[101]
Nearly all the men were allegedly ex-PACs from Xococ, the home village of the
defendants.[102]
According to various eyewitnesses, the men arrived at the courthouse in trucks
belonging to the military base in Cobán.[103]
They approached the jail, attempted to free the three defendants,[104]
and threatened to kill the trial judge if the defendants were not released.[105]
Eventually, police reinforcements arrived and dispersed the mob.[106]
This incident was apparently a direct effort to intimidate the judge, as well
as all the officials of the justice system involved in the proceeding.
Moreover, the use of military vehicles for the transport of the rioters
indicates the likelihood that the military organized and participated in the
acts of intimidation.
Although
the judiciary has attempted to address the problem of threats against judges,
it has failed to combat the problem effectively. For example, when judges are
assigned a security detail, they must pay for the room and board of their
bodyguards¾an expense that is impossible for most to
bear, given their current salaries.[107]
Once enacted, a new initiative to create a special protective unit under the
control of the judiciary, specifically trained and assigned to protect judges,
may relieve some of the problems.[108] Until judges are able to act without
fear of reprisal, however, they will be unable to effectively fulfill their
duties.
b. Threats
Against the Ministerio Público
Reports
of threats against officials of the Ministerio Público are also common.[109]
Although threats occur at all levels of the Ministerio Público, most are
directed against local prosecutors who have direct responsibility for
prosecuting cases including the massacre cases.[110]
The effect of such threats is often a delay in the prosecution of those
responsible. Prosecutors who are threatened in massacre cases may intentionally
allow those cases to go uninvestigated or may actively impede prosecution by,
for example, losing files.[111]
According
to some observers, the slow progress of the Dos Erres massacre case illustrates
the effects of threats against prosecutors.[112] On December 6, 1982, the army
allegedly entered the village of Dos Erres and ordered people to line up,
separating the men and women.[113] Soldiers allegedly blocked the roads
to the village, preventing anyone outside the cordon from entering Dos Erres.[114]
On December 8, 1982, at three o’clock, residents of Las Cruces, a nearby
village, heard detonations and shots from Dos Erres.[115]
At least 250 people were killed in the massacre.[116]
The
investigation into the massacre began with an exhumation in 1994 after Familiares de los Desaparecidos de Guatemala
(“FAMDEGUA”), Families of the Disappeared of Guatemala,[117]
filed a complaint.[118] The
forensic anthropologists uncovered the remains of 162 bodies, some of which
were found piled in a well.[119]
Despite the skeletal remains and other overwhelming evidence provided by the
forensic anthropologists, the original local prosecutor refused to prosecute
the case.[120]
According to the private prosecutor for the victims,[121]
the primary reason the State prosecutor refused to bring the case was because
he feared that he and his family would be in danger; former military personnel
had threatened his life.[122] Eventually,
the case was able to proceed through the appointment of a special prosecutor.[123]
The
Bishop Juan Gerardi murder case,[124]
however, illustrates that the appointment of a special prosecutor does not
ensure that a case will be unimpeded by threats. Lic. Celvín Galindo, the
special prosecutor on the case, was forced into exile after he began
subpoenaing military officials.[125]
Galindo reported that he received threats from anonymous sources and was
subject to surveillance by military personnel.[126]
Apparently
as a result of threats against the Ministerio Público, prosecutors fail to prosecute cases vigorously. The
responsibility to prosecute, thus, improperly falls to the victim, or the
private prosecutor. For example, in the Rio Negro case, the case went forward
only after the victims, with the help of NGOs, had developed the evidence and
pressured the Ministerio Público.[127]
c. Threats
Against Witnesses and Human Rights Groups
In
addition to threats against judges and prosecutors, it has been reported that
the military and PACs frequently make threats against witnesses and victims to
discourage them from testifying or pursuing investigations.[128] These threats have the effect of
both deterring investigations before they have begun and delaying them once
they are underway. Such threats are particularly effective because the witnesses
have already suffered at the hands of those who are making the threats and have
seen them carried out firsthand. Indeed, threats often appear to come from
regional military bases or from former PACs living in the same village as the
witnesses.[129]
For
example, according to Jesús Técu, a survivor and lead witness in the Rio Negro
case who now works with the victims’ families in the Plan de Sánchez case, the
military has threatened witnesses and human rights groups in both cases.[130]
Shortly after the exhumations of mass graves first began in Rabinal, the
municipality in which both the villages of Plan de Sánchez and Rio Negro are
located, the Regional Military Commander convened a meeting of the men from the
surrounding villages.[131] He
allegedly told them that if they proceeded with exhumations, la violencia and the massacres of the
past would return.[132]
Técu
also alleged that troops in the same region have visited the sites of the
exhumations and said to the victims’ family members that, despite the recent
shift in politics, “when the laws change, we will come back and kill the widows.”[133]
In spite of these explicit threats, local human rights activists have continued
their efforts to exhume mass graves in their villages and to pressure the
government to investigate and prosecute those responsible. Even so, according
to Técu, threats have deterred some witnesses from testifying or pursuing
investigations into the massacre cases.[134]
In
another case, Paul Seils, a legal advisor to the witnesses and families of the
victims in the Cuarto Pueblo massacre, stated that the military called survivors
of the massacre to a regional army base in the Ixcán, Military Zone 22.[135]
Military personnel reportedly pressured the survivors not to continue with
their complaint, implying that such action would trigger a return of la violencia.[136]
The military also allegedly promised titles to land in the Ixcán to survivors
who agreed to drop or not join the complaint against army personnel.[137]
According to Seils, such actions by the military, an obvious attempt to
obstruct judicial process, constituted both intimidation and corruption.[138]
Even
ex-military personnel can become the targets of these threats. In the Dos Erres
case, two former Kaibiles, or special
forces troops, became witnesses for the prosecution by testifying about the
massacre that their unit had committed.[139] When the military learned that the
two men intended to testify, the military allegedly threatened their lives.
Because of the threats, the two witnesses were forced to flee Guatemala; they
have been granted temporary asylum in another country.[140]
The
government of Guatemala should address the problem of threats by providing
greater protection for judges, prosecutors, and civilians involved in the
prosecution of massacre cases. The judiciary has planned and funded a specially
trained protective force, and should immediately implement this special
protection force for at-risk judges, particularly those involved in the
massacre cases. The Ministerio Público should also implement special protective
measures to ensure that prosecutors are free from intimidation.
The
Law for the Protection of Judicial Actors, passed by the Guatemalan Congress in
1996, requires that witnesses, judges, and prosecutors subject to intimidation
be protected.[141]
The program lacks funds and, therefore, has not been implemented.[142]
The establishment of a well-funded and effective witness protection program is
essential to ensure witnesses’ sufficient confidence in their own safety to
testify in massacre cases. Although witness protection is declared to be a
priority, neither the Ministerio Público, the body responsible for funding the
program, nor the police is effective in protecting witnesses.[143]
Protection
for those threatened by the military and former PACs is not enough. The PNC
should implement a special investigative unit for threats against judicial
actors, and prosecution of those cases should be a priority within the
Ministerio Público. Aggressive prosecution of those who threaten judges and
impede justice would deter future threats and reduce impunity. The Ministerio
Público should focus attention on the investigation and prosecution of those
responsible for the threats. Military personnel or government officials who are
responsible for threats should be removed from their positions and prosecuted
to the fullest extent of the law.
The
Guatemalan justice system was largely marginalized during the internal armed
conflict.[144]
Justice José Quezada, President of the Supreme Court, stated that “during the
36 year conflict . . . there was really no administration of justice.”[145] The State was reportedly preoccupied
with the insurgency and ignored the deterioration of judicial integrity.[146]
As a result, corruption became a significant problem and now reportedly
permeates every level of the justice system.[147]
While government officials are allegedly responsible for much of the
corruption, private landowners, PACs, and former military personnel may also
improperly influence the functioning of the justice system.[148]
Part
of the Guatemalan State’s legal duty to investigate and provide an effective
remedy in the massacre cases is found in the specific obligations it has
concerning corruption. Guatemala has an obligation to remedy corruption under
the Inter-American Convention Against Corruption (the “Convention Against
Corruption”).[149]
The OAS has promulgated the Convention Against Corruption, which recognizes the
social cost of corrupt public institutions,[150]
and calls for the adoption of specific measures to reduce its impact.[151]
Although Guatemala has not ratified the convention, the
State is a signatory and is therefore obligated to use best efforts to
comply with its principles until its ratification.[152]
Guatemala is therefore obligated to address this pervasive problem,
particularly where corruption leads to violation of its other duties under
international and domestic law. This duty is also set forth in the
Comprehensive Agreement on Human Rights from the Peace Accords.[153]
Corruption
reportedly takes a variety of forms, all of which affect the resolution of
massacre cases through improper influence by military personnel in both the
judiciary and the Ministerio Público.[154]
The most obvious form is direct corruption through bribes to prejudice specific
judgments and resolutions of cases.[155]
A more subtle form is the use of influence within the government to manipulate
the assignment of prosecutors or judges, so that the officials most capable of
handling complex massacre cases are not always assigned to such cases.[156]
Both kinds of corruption greatly undermine the State’s prosecution efforts.
a. Corruption
in the Judiciary
Bribery
in the judiciary appears to be a significant problem. Judges’ traditionally low
salaries[157]
have left the judiciary susceptible to corruption. In addition, most judges are
not given adequate protection from intimidation and threats. If judges want
protection, they themselves must pay for the room and board of their bodyguards,[158]
which adds to the financial pressure. The State has recently initiated reforms
through the Judicial Career Law, which will increase the wages, provide some
training for judges, and change the way complaints about judges are handled.[159] While the effects of the Judicial
Career Law remain to be seen, corruption through bribery reportedly continues
to be a significant problem within the judiciary.[160]
The
problem of judicial corruption is illustrated by the Xaman massacre case. The
massacre took place in October 1995 when a group of soldiers allegedly entered
the village of Xaman and opened fire on the unarmed inhabitants who were
gathered for a celebration.[161] According to Lic. Claudia Samayóa,
Director of the Rigoberta Menchú Foundation, at least one of the judges
presiding over the case was offered 500,000 Quetzales (roughly US$83,000 at the
time) to make evidentiary rulings in favor of the defendants.[162]
When the judge refused the bribe, his life was threatened.[163]
Because of that threat, the judge attempted to recuse himself from the case.[164]
Such
reports of corruption raise questions regarding other irregularities in the
Xaman case.[165]
For example, one judge ruled that despite the fact that the military opened
fire on a group of unarmed civilians, killing eleven, the soldiers’ actions
were “unintentional.”[166]
They were merely found guilty of negligent homicide, a crime that does not
exist under Guatemalan law.[167] Although it is difficult to ascertain
the extent to which bribes influence such outcomes in specific cases, the
problem appears to be pervasive.[168]
ii. Political
Corruption / Trafficking of Influence
According
to Monsignor Mario Rios Montt, Director of the Human Rights Office of the
Archdiocese of Guatemala (“ODHA”), most judges in recent years have obtained
their appointments through political connections and favors, rather than
through merit or ability.[169]
This politicized process reportedly creates a system in which judges, who may
not even be qualified for their positions, are indebted to government officials
or private citizens who were influential in their appointment to the bench.[170] The “trafficking of influence”
creates a lack of impartiality among judges,[171]
and may extend to the highest levels of the judiciary.[172]
When a
judge has been appointed through political connections, that judge may be asked
to use his or her position improperly to alter the outcome of politically
significant cases such as the massacre cases. A judge may dismiss cases, fail
to issue arrest warrants, allow pre-trial release of suspects, make improperly
favorable evidentiary rulings for the defense, or affect the prosecution
through other administrative procedures of the court.[173]
These abuses have reportedly delayed and sometimes derailed the investigation
and prosecution of massacre cases.[174]
Much
of the delay in the Rio Negro case[175]
is allegedly the result of undue influence on the judges.[176]
For example, judges reportedly have slowed the progress of the Rio Negro
massacre case by employing administrative obstacles in response to political
influence.[177]
According to the prosecutor on the Rio Negro case, “when politics walks in the
door, justice leaps out the window,” and this apparently is what happened in
the Rio Negro case.[178]
Although there have been three convictions of former civil patrollers who
participated in the massacre, the intellectual authors of the crime as well as
other former military defendants named in the complaint have not been prosecuted.[179]
The judiciary has failed to take the active role newly required by the CPP in
supervising and expediting the investigation of the Rio Negro case.[180]
Given
the historic lack of effective supervision of the judiciary, a greater need for
scrutiny of the courts is required.[181]
The judiciary has recently instituted a new review process for judges that may
help curb incompetence and corruption.[182]
Additionally, the judiciary, the Ministerio Público, and the PNC are
instituting training in judicial and prosecutorial ethics.[183]
These steps, though welcome, are not likely to prove sufficient to address the
problem of judicial corruption.
b. Corruption
in the Ministerio Público
As
with the judiciary, some prosecutors reportedly have been appointed through
political connections, sometimes with little regard for their abilities or
training.[184] The politicized appointment process
leaves prosecutors open to undue influence and corruption. Although it may be
difficult to prove improper action in a particular case, a pattern of
non-prosecution, apparent intentional mishandling of evidence and case files,
and administrative delays raise questions regarding the professionalism and
independence of prosecutors.[185]
For
example, a case against a former PAC member charged with the murder of
presidential candidate Jorge Carpio and three others was dismissed due to the
unexplained disappearance of key ballistic evidence from the Ministerio Público’s custody.[186]
Similarly, FAMDEGUA detailed a series of abuses that were the result of corruption
or incompetence in the Dos Erres massacre case, including mishandling of case
files and evidence that delayed prosecution.[187]
Such delay tactics are common to massacre cases.[188]
The
Ministerio Público reportedly has engaged in subtle pressuring of witnesses to
discourage them from testifying.[189]
According to a survivor and lead witness in the Rio Negro case, prosecutors
told witnesses that if they continued to go ahead with the case, they would be
killed by the military.[190]
Instead of taking steps to protect witnesses, prosecutors have relayed such
second-hand threats, thereby discouraging victims and witnesses from
testifying. Former military personnel, many of whom reportedly were
participants in the atrocities of the internal conflict, permeate the Ministerio
Público.[191] Where the military has infiltrated
the Ministerio Público, they have the opportunity to mishandle cases, corrupt
evidence, and use their position to learn the names and locations of witnesses.[192]
This undermines the mandate of the institution, as former military personnel
are able to exert their influence to deter prosecution of massacre cases.[193]
The military reportedly also exerts external influence through corruption and
intimidation of prosecutors and judges.[194]
Powerful
landowners appear to have been another source of improper political influence
on the impartial resolution of cases. These landowners exert significant
control over local affairs. Some of the massacres, such as Pichec and Plan de
Sánchez, occured on land owned by private individuals. Landowners, some of whom
have been implicated in oppression against the local indigenous people, have
used their influence to impede investigation efforts.[195] In addition, landowners have
allegedly threatened witnesses directly.[196]
In
one example, a local landowner, whose family owns a hydroelectric plant that
powers much of southern Guatemala, allegedly used his influence to suppress the
investigation of the Tres Aguas exhumation located on his property.[197]
The prosecutor responsible for that case obtained a fifteen-day warrant to
initiate the exhumation. According to Lic. Francisco de Leon, Acting Director
of the ODHA exhumation team, the prosecutor allowed that warrant, and two subsequent
warrants, to expire because of the landowner’s influence.[198]
Although the exhumation was eventually allowed to proceed, this provides an
example of the political influence used on local prosecutors to slow down and
discourage investigations.
c. Corruption
of Witnesses by the Military
In
addition to alleged threats against witnesses, military personnel have
apparently improperly influenced witness testimony through bribery. For
example, in the Cuarto Pueblo massacre case, the military allegedly promised
land and animals to the victims and survivors of massacres to deter them from
pursuing their cases.[199]
Bribery, coupled with threats of reprisal,[200]
has greatly limited public willingness to assist in the prosecution of the
massacre cases.[201]
d. Non-Prosecution
of Corruption
Despite
the evidence of widespread corruption in the judiciary, and in the Ministerio
Público, as well as attempted bribery of witnesses and survivors of the
massacres by the military, the State has failed to investigate or prosecute
these acts.[202]
The inaction of the Ministerio Público and the judiciary has permitted those
responsible for the massacres to enjoy continued impunity.
Numerous
complaints of corruption were filed with the office of the Human Rights
Ombudsman.[203]
Although the Ombudsman’s office is empowered to investigate cases of
corruption, it does not have the resources to handle those investigations.[204]
Even if the office had such resources, the Ombudsman does not have the mandate
to prosecute those responsible.[205] To
the extent that this corruption goes unpunished, it will remain an obstacle to
the effective investigation and prosecution of the massacre cases.
To
address the problem of corruption, the State must target both those who traffic
in influence and bribe government officials and those who accept bribes. The
State should establish an independent office to investigate and prosecute those
who bribe judicial officers or otherwise attempt to influence the judiciary,
the Ministerio Público, or witnesses.[206]
Such an office should also prosecute those who accept bribes or who yield to
other forms of influence.[207] It
should also be empowered to take complaints directly from the public. To ensure
transparency, this office should include representatives from the office of the
Human Rights Ombudsman[208] and
human rights NGOs, and publish reports for public dissemination.
The
politicized appointment process leaves prosecutors open to influence and
corruption. Although there is an initiative to appoint prosecutors through a
training program, thus creating a merit-based appointment process, it only
applies to new prosecutors. Current prosecutors in the Ministerio Público, who
have been appointed through a politicized process, are not subject to the
training program. Therefore, this initiative does not sufficiently combat
corruption in the Ministerio Público.
Every
attempt should be made to diminish the ability of military personnel involved
in the massacres to influence the judiciary and the Ministerio Público. The
State should remove former military personnel from their positions in the
government who are using their influence to affect the judicial process. Civil
servants who are accused of crimes related to these massacre cases should also
be removed from positions where they may have influence over such cases.[209]
Judges
and prosecutors must be better protected from undue influence. The
implementation of protection programs in conjunction with an increase in
salaries for judges, when effectuated, may make them less susceptible to the
military’s agenda. Furthermore, the State should focus on investigating and
possibly prosecuting improprieties by judges to curb the effects of threats and
bribes.
The
constitutionally mandated term for judges is five years, with the possibility
of reappointment. The imposition of such a short term politicizes the position
of judges and leaves them vulnerable to corruption. The legislature should
amend the Constitution to confer lengthier terms on judges in order to reduce
the influence of corruption.[210]
The
judiciary and the Ministerio Público should take a greater role in supervising
the ethical education of judges and prosecutors. Judges and prosecutors need
better training in ethics, and special rules should be promulgated regarding
the professional conduct of judges and prosecutors. The judiciary should remove
judges who violate the rules of the court by accepting bribes or by improperly
using their positions to derail prosecution of the massacre cases.
The
implementation of the newly approved Judicial Career Law is a first step in
limiting corrupt practices within the judiciary.[211]
One positive sign is the judiciary’s implementation of the recommendations of
the Commission on the Strengthening of Justice, in particular with respect to
separating responsibility for the administrative and judicial functions of the
judiciary. Such structural reform should improve the system’s ability to
discipline and remove judges where appropriate.
The
incompetence of some lawyers and judges in the Ministerio Público and the
judiciary has also contributed to the State’s failure to effectively
investigate and prosecute massacre cases. Some prosecutors lack the skills to
investigate and prosecute a case effectively under the recently introduced
adversarial system. Judges may compound the problem by mishandling procedures
and misapplying the law. To the extent it has permitted incompetence in the
justice system, the State has violated its obligation under Article 2(3) of the
ICCPR to give its citizens a right to bring their claims of a violation of the
right to life to a competent judicial, administrative, legislative, or other
authority provided for by the State’s legal system.[212]
Furthermore, the U.N. Principles and the U.N. Manual underscore the duty of the
State to competently investigate alleged violations of the right to life.[213]
a. Incompetence
in the Ministerio Público
The
State’s legal duty to investigate and provide an effective remedy in the
massacre cases is further affected by the reported incompetence in the
Ministerio Público. Many people within the judiciary, the Executive branch,
international organizations, and NGOs whom the delegation interviewed, have
referred to the Ministerio Público as “the weakest link
in the criminal justice system.”[214] The problems within the Ministerio
Público begin with the inadequate education prosecutors receive in law school.[215]
Neither the Colegio de Abogados de
Guatemala, the Guatemalan Bar Association, nor any other organization
regulates the quality of legal education.[216]
Instructors often teach from outdated texts, some of which date back several
decades.[217]
In addition, the Adjunct Human Rights Ombudsman and law professor, Marco
Antonio Aguilar Parma, notes that many lawyers hold positions within the
Ministerio Público in low regard. The
perception among lawyers is that lawyers who have difficulty getting private
clients seek employment with the Ministerio Público as a last resort.[218]
This perception undermines morale within the Ministerio Público and prevents it
from attracting quality candidates.[219]
A lack
of training in criminal procedure under the new CPP, which gives prosecutors
significantly more responsibility in investigating cases, exacerbates the
incompetence of some prosecutors.[220]
For example, prosecutors often fail to follow the procedures for preserving
evidence by effectively sealing off crime scenes and preserving the chain of
custody for physical evidence.[221]
This mishandling results in evidence that is unusable or questionable at trial.[222]
More generally, many prosecutors have not effectively carried out their new
investigative responsibilities under the adversarial system.[223]
In
addition to inadequate training, some prosecutors suffer from a lack of
commitment to their role. This may be true for several reasons.[224]
Because prosecutors receive relatively low salaries compared with the salaries
that lawyers in private practice receive, the prestige and satisfaction from
working in public service is an important part of their compensation in many
countries. In Guatemala, however, prosecutors are held in low regard and do not
receive the status and benefits conferred on prosecutors in other countries, so
they often do not take pride in representing a State with a history of
corruption and repression.[225]
As
a result, some prosecutors seem to
fail to understand or willfully ignore their role as a representative of the
State and the State’s responsibility to bring prosecutions.[226]
The lack of commitment to their role as representatives of the State is
reflected in prosecutors’ tendency to wait for victims or their family members
to lodge complaints before they investigate a crime. This is true even though
they are empowered to begin investigations themselves[227]
and often have sufficient evidence in the massacre cases to do so.[228]
The
mishandled investigation and lack of prosecutions in the Cuarto Pueblo massacre
case are examples of the apparent incompetence of the Ministerio Público. The massacre at Cuarto Pueblo in the
Ixcán region of the department of Quiche occurred over three days in March
1982, principally on March 14, 1982, a market day when residents from the surrounding
countryside were gathered for shopping. At the height of the massacre, soldiers
allegedly shot civilians from military helicopters and the ground. In an
attempt to conceal the evidence of the massacre, the soldiers then allegedly
took the more than 300 bodies, placed them in a nearby church and set the
church on fire.[229]
The
criminal investigation into the massacre began with a request by the local
justice of the peace for an exhumation on May 25, 1995.[230] The evidence from that exhumation
was transferred to Guatemala City for analysis, but no record of the chain of
custody for that evidence exists.[231] Although the analysis yielded no
positive identifications, a fact that the prosecutor cited as the major
obstacle in prosecuting those responsible, the prosecutor personally took the
testimony of forty-one witnesses to the massacre.[232]
According to the prosecutor, the statements by these witnesses are consistent
with each other and the physical evidence.[233]
On
October 16, 1996, the prosecutor sent a letter to the Minister of Defense
requesting information about the operations in Military Zone 22 in the Ixcán on
March 14, 1982. The Minister did not reply until July 24, 1997, after the
prosecutor had sent a third letter requesting the information. The Minister
responded that he could not answer the prosecutor’s questions because the
military base, Zone 22, did not exist until March 23, 1983. The prosecutor
requested no further information from the Defense Minister and never confronted
him with the overwhelming evidence of the operation of numerous military bases
in the Ixcán region on March 14, 1982.[234]
The
prosecutor then sent a letter to his superior, the Attorney General, asking him
how to proceed and requesting that the Attorney General appoint a special
prosecutor to the case. The prosecutor never received a response to that letter
and has not proceeded further with the investigation in the Cuarto Pueblo
massacre case.[235] The
prosecutor stated to the delegation that he has not proceeded with the case
because he believes that judges, conditioned under the inquisitorial system,
will not accept circumstantial proof of death.[236] Even without identifications of
victims, the prosecutor has forty-one consistent eyewitness accounts of the
massacre stating that there were operational military bases in the Ixcán area
at the time, at least twelve eyewitnesses who are eager to testify,[237]
ample physical evidence of a massacre, and corroborating evidence in the REMHI
report[238] and other public records. The
failure to proceed with the prosecution in the face of such substantial
evidence reflects either incompetence or lack of commitment to the
prosecutorial role.
b. Incompetence
in the Judiciary
The
lack of adequate training for judges affects all levels of the judiciary
beginning with justices of the peace. Each municipality in Guatemala has at
least one justice of the peace, who may be the only judicial actor within the
municipality.[239]
Justices of the peace adjudicate certain types of minor cases.[240]
In addition, Article 308 of the CPP empowers justices of the peace, under the
direction of the Ministerio Público, to begin investigations on larger cases
where they are the only judicial actor in the municipality.[241]
For the most part, justices of the peace have no formal legal training, and
most are not lawyers.[242]
This lack of training has led to serious procedural errors, including the
mishandling or destruction of evidence, as in the Cuarto Pueblo case.[243]
Although the Judicial Career Law requires that all justices of the peace become
lawyers within the next three years,[244]
the prospects for this massive undertaking do not appear good.[245]
In the meantime, most justices of the peace are reportedly unqualified to carry
out their duties.[246]
Judges
of the First Instance and judges in the courts of appeals also suffer from a
lack of training, particularly with regard to the change from the inquisitorial
to the adversarial system. Under the old inquisitorial system in Guatemala,
judges were responsible for both investigating and adjudicating cases.[247]
Under the newly instituted adversarial system, judges are no longer responsible
for investigating cases and only adjudicate.[248]
According
to Justice Barreda of the Guatemala Supreme Court, many judges have been
reluctant to relinquish the power over the procedural aspects of investigations
and prosecutions that the inquisitorial system afforded them, even though such
judges do not adequately fulfill those duties.[249]
Judges also need to adapt to the new oral proceedings of the adversarial system
as opposed to the largely written proceedings of the inquisitorial system.[250]
Given Guatemala’s generally deficient system of legal education and the
difficulties associated with switching to a new criminal procedure code, many
judges fail to understand and implement the provisions of the new code and
constitutional protections for defendants.[251]
This
lack of training has multiple effects. According to Enrico Menéndez, District
Attorney for Salama, the lack of training for judges of the first instance has
led to lost cases for the State.[252]
As a result of their inadequate understanding of the law, judges have failed to
issue arrest and search warrants in a timely manner, jeopardizing
investigations and arrests.[253]
Lic. Menéndez also stated that defendants are detained without being charged or
informed of their rights.[254]
When a defendant is finally tried, presiding judges often have incomplete
knowledge of key legal principles such as presumption of innocence for
defendants.[255]
The
lack of knowledge of the law apparently extends to both substantive law and
procedure. The actions taken by the judge in the Xaman massacre case illustrate
this point. The judge convicted the defendants of negligent homicide with
complicity, a crime that does not exist in Guatemalan law.[256]
One Justice of the Supreme Court of Justice commented that not only was the
fabrication of a crime absurd, but so was the sentence of negligent homicide in
a case where thirteen people were killed in a barrage of 288 bullets.[257]
The
problems caused by incompetence in the Ministerio Público cannot be remedied
unless it attracts qualified lawyers and trains those lawyers to work
effectively under the new criminal procedure code. One way to do that is by
increasing the salaries of prosecutors. An increase in salary would not only
attract candidates who would otherwise aim for higher paying fields;[258]
it would alleviate the pressure on prosecutors to take private cases to
supplement their income.[259] In
addition, prosecutors must be trained in investigative techniques, preservation
of evidence, and the traditional skills involved in being an effective trial
attorney under the adversarial system.[260]
These measures may eventually improve the status of the position of prosecutor,
which would, in turn, attract more qualified candidates.
Judges
must also receive better training. Although the Judicial Career Law and the
judges’ school set up by the Agreement of the Magistrates of the Supreme Court
are promising initiatives that may raise the level of competence within the
judiciary, most judges will not receive training under this arrangement.[261]
New candidates for judicial and justice of the peace positions are chosen by
the judges’ school[262] and
are required to attend the school, which offers courses designed to teach the
practical, rather than theoretical, aspects of the law and the process of
judging.[263]
Specifically, the Judicial Career Law requires all new judges to pass a test
before being considered for a judicial post and provides for periodic
evaluation of judges.[264] One
serious limitation of the reforms is that these new and ambitious training
programs only apply to new judges, so that incompetent judges already serving
on the bench need not undergo any additional training and may remain on the
bench.[265]
For this reason, the State should require all judges to undergo training.
4. Financial
and Technical Resources
The
State has further failed to comply with its duty to prosecute and provide an
effective remedy in the massacre cases through its inadequate funding of the
criminal justice system and its lack of coordination among the institutions
that make up that system. Article II of the Comprehensive Agreement on Human
Rights, entitled “Strengthening Institutions for the Protection of Human
Rights,” elaborates on that duty, stating:
The
Parties consider that any behavior that limits, restricts or impairs the
function assigned to the judiciary, the Counsel for Human Rights [Human Rights
Ombudsman] and the Public Prosecutor’s Office in respect of human rights
undermines fundamental principles of the rule of law and that, accordingly,
those institutions must be supported and strengthened in the exercise of those
functions.[266]
This
commitment to strengthen the institutions involved in criminal justice and
human rights is of little use without adequate funding for each institution and
a commitment to coordinate these institutions.
a. Lack of Financial and Technical Resources
The
Guatemalan institutions involved in the administration of justice are
drastically under-funded.[267] For
example, the Guatemalan Constitution mandates that the judiciary’s budget may
not be less than two percent of the entire budget,[268]
a percentage lower than that allocated to physical education and sports.[269]
The Constitution gives Congress broad discretion to set the judiciary’s budget,
as is the case in many countries. This broad discretion, however, is in the
hands of a Congress whose members may have a vested interest in preventing the
effective administration of justice because some of them may have participated
in the massacres.[270] A
strong commitment to increase the judiciary’s budget may not exist because this
budgetary power rests in the hands of people who may not want the judiciary to
adjudicate certain cases. Moreover, whatever the percentage allocated to the
judiciary, the total budget is limited by the inadequate tax base and tax
collection efforts.[271]
Substantial
international aid has poured into Guatemala for the purpose of strengthening
the administration of justice.[272]
International donors have filled in the budgetary gaps to a certain extent with
financial and technical resources. For instance, the United States Agency for
International Development (“USAID”) has instituted several justice centers
throughout Guatemala that seek to integrate all of the resources necessary to
the administration of justice.[273]
Centers that have benefited from this international aid have centralized resources,
computerized case management systems, trained intake and investigation units in
the local prosecutor’s offices, and specially trained court clerks.[274]
USAID considers the program a success as measured by the difference between the
number of cases lost by the courts in Guatemala before the institution of the
justice centers (1,061) and the number lost after the justice centers (one).[275]
The
effectiveness of the USAID program illustrates how additional resources can
assist with the effective investigation and prosecution of the massacre cases.
Unfortunately, courts and prosecutors’ offices outside of the city are
suffering from a serious lack of financial and technical resources and still
have the dismal “before” statistics highlighted by USAID.[276] For example, in Cobán, the prosecutor’s
office for Alta Verapaz has three prosecutors who each year must collectively
handle 6,000-7,000 violent crimes committed in their office’s jurisdiction, in
addition to massacre cases for which investigations have begun in the last few
years.[277]
Although special prosecutors are
generally the most effective prosecutors, they also are often overburdened.[278]
For example, Mario Leal, a special prosecutor, handles two high-impact cases
with more than forty defendants—the Dos Erres massacre case and the Gerardi
case.[279] Furthermore, the Human Rights
Ombudsman’s Office has received the same budget for the past four years and has
had to rely on international money to function.[280]
b. Coordination
of Institutions and Resources
Some
government actors and international donors suggest that the institutions in the
justice system have adequate funding.[281]
Rather than inadequate funding, they suggest that the real problem is twofold:
(1) the lack of coordination among institutions;[282]
and (2) the inability of institutions to absorb technical assistance.[283]
As to the former, examples abound. For instance, prosecutors in the Ministerio
Público often have problems investigating because they lack technical, human,
and financial resources.[284] The
PNC could assist with these investigations, but the communication between the
two institutions is so deficient that such cooperation rarely occurs.[285]
Luis Ramírez, Director of the Institute of Comparative Penal Studies of
Guatemala, stated that “the police should be under the lead of prosecutors, but
this does not happen in practice.”[286]
This lack of coordination has hindered the progress of the massacre cases
because their investigations and ultimate prosecutions require cooperation
among the initial investigators on the cases, the prosecutor currently handling
the case, the PNC, the Human Rights Ombudsman, and other institutions with
relevant information or expertise.
In
the Dos Erres massacre case, for example, a lack of communication between the
prosecutor and the PNC led to significant delays.[287] The special prosecutor in the case stated that he requested a
detention order for several defendants from the judge on the case who sent it
to the police chief.[288] The
prosecutor attempted several times, to no avail, to have the police execute the
order. The local police chief responded to those requests by saying that he did
not have any time to carry out the order.[289]
The police chief never executed the order and ignored the prosecutor’s repeated
requests because no effective channel of communication between the PNC and the
Ministerio Público existed.[290] The
lack of systemic coordination between the institutions has, therefore, allowed
the defendants to remain free.[291]
The
Guatemalan government has made efforts to address these problems. The Peace
Accords set up the Commission for the Strengthening of Justice (“CSJ”) to make recommendations for the
creation of a national policy on criminal justice that would affect all
institutions involved in the administration of justice.[292]
The CSJ consisted of representatives of the judiciary, the Ministerio Público,
the Interior Ministry, the deans of San Carlos Law Faculty and Rafael Landivar
Law Faculty, the PNC, and two private citizens.[293]
Once the CSJ fulfilled its mandate, it reconvened as the Ad Hoc Judicial
Strengthening Committee in order to implement the recommendations of the CSJ.[294]
Following the inauguration of President Portillo, this committee was again
convened, this time as the National Commission for the Strengthening of Justice
(“NCSJ”).[295]
Helen
Mack, a member of the NCSJ has stated that however well intentioned the NCSJ
is, it has had only limited success.[296]
In addition to trying to tackle the formidable structural problems in the
criminal justice system, the NCSJ has had trouble reaching consensus about its
initiatives.[297]
All but two of the members of the NCSJ are selected from particular
institutions and regard their role as representative of their institutions’
interests.[298]
Many members claim that they need approval from their institution before they
can approve a proposal within the NCSJ.[299]
These tactics serve to stall progress in the NCSJ, thus slowing down the reform
process.[300]
The
second problem related to coordinating resources, the lack of capacity to
absorb resources, is illustrated by the example of the Ministerio Público
reportedly spending only seventy percent of its entire budget last year.[301]
The Ministerio Público could have used the other thirty percent of its budget
but apparently lacks the capacity to deploy the resources, including the
international technical assistance it receives. The lack of absorptive capacity
in the Ministerio Público is the
result of inefficiency and the lack of a coordinated policy to address crime in
Guatemala.[302]
Guatemala’s
inadequate tax base and poor tax collection mechanisms affect all institutions
of government. Greater resources would improve the functioning of all such
institutions as long as those institutions can absorb those resources.[303]
With respect to the judiciary, however, the budget should be fixed at a higher
level to reduce political influence and adequately fund courts in both the city
and the countryside.
In
addition to providing adequate funding, the State needs to coordinate those
funds and other resources in a timely manner so that they can be deployed
effectively to improve the criminal justice system. Although the NCSJ may serve
as a mechanism for coordinating resources among the institutions in the
criminal justice system, the institutional entrenchment of its members must
first be addressed. Charging a well-functioning NCSJ with the administration of
all international aid would help eliminate waste and the problems related to
absorptive capacity. It would also assist in coordinating the State’s institutions.
With
respect to the massacre cases, the problems of coordination may best be dealt
with by the establishment of a war crimes unit within the Ministerio Público.
The creation of such a unit would provide relief to local departmental
prosecutors. This would be especially helpful for rural prosecutors who often
lack both the resources and technical capacity to prosecute those crimes.
Members of the war crimes unit would receive special training in both
international and domestic law governing such crimes. The unit would need its
own prosecutors, investigators, security personnel, and perhaps forensic
experts, although forensic reports that conform to international standards are
already on file in many departmental court houses and prosecutors’ offices.[304]
5. The
Inappropriate Classification of Military Secrets
Another
way the State is failing to comply with its legal duty to investigate and
provide an effective remedy in the massacre cases involves the definition of
“military secrets.” The military, including its intelligence agencies, has used
the excuse of protecting military secrets as a pretext to deny investigators
basic information regarding military units that operated near the sites of the
massacres and that may have been perpetrators of those human rights violations.[305] As a result, the investigations have
regularly broken down before reaching the culpable military personnel.[306]
The military’s definition of military secrets does not appear to have any
limits. It is not one that legitimately can be defended as protecting military
secrets while simultaneously adhering to the constitutional requirement that
officials be legally responsible for their official conduct.[307]
a. Military
Culpability in the Massacre Cases
The
CEH has determined that the army, either acting by itself or in collaboration
with other forces, was responsible for eighty-five percent of all human rights
violations and acts of violence registered in the internal conflict.[308]
REMHI has determined that 422 massacres took place during the internal
conflict, with an estimated 14,000 victims.[309]
Reports implicate the Army in 90.52 percent of the massacres,[310]
yet not a single commissioned military officer has ever been indicted, let
alone prosecuted for a role in the massacres.[311]
The abuse of the military secrets justification by the military and its intelligence
agencies is a significant reason for the continuation of impunity in the
massacre cases.[312]
b. Lawmaking
and Military Secrets
The
Guatemalan Constitution requires that government records be available to the
public, except when the records involve military or diplomatic matters
concerning national security.[313] The Constitution does not define the
parameters of national security matters, also referred to as “military
secrets.”[314]
Although Congress has the authority to define the term “military secrets”
more precisely, it has not passed a law on this matter to date.[315]
Instead, the Ministry of Defense and the Departamento
de Información y Divulgación del Ejercito (“DIDE”), the public information
office of the Army, have traditionally controlled the parameters of that term.[316]
In
addition, Congress has not passed a law on declassification of State-controlled
information.[317]
Once classified as a military secret, information may be shielded
indefinitely. Declassification would allow the State to release basic
information about past locations, functions, and personnel of military units
that is material to the prosecution of the massacre cases. At the present time,
Guatemala does not have a declassification policy of any kind.[318]
This
lack of legal definition of “military secrets,” as well as the lack of a
declassification policy, has had an important impact on the prosecution of the
massacre and other cases. For instance, the Defense Ministry, and in particular
the Estado Mayor Presidencial (“EMP”),
the State security apparatus,[319]
used protection of military secrets as an excuse not to provide information in
the Myrna Mack murder case.[320] In
the investigation into the EMP superiors who allegedly ordered the killing, the
prosecution asked the military for basic information such as vehicle and events
logs of the EMP.[321] The
military withheld the information on the grounds that it constituted military secrets,[322]
and the Judicial branch refused to compel the military to cooperate.[323]
Due to this and other obstructions of justice the Ministerio Público has been unable to successfully
prosecute the intellectual authors of the Mack murder.[324]
At
other times, the military has simply refused to respond to requests for
information without formally invoking the military secrets pretext. For
example, in the Cuarto Pueblo case a prosecutor wrote to the Defense Ministry
seeking basic information about military personnel at a military base in the
area where military helicopters allegedly participated in a massacre of
approximately 300 people.[325] The
Defense Ministry reportedly stonewalled the prosecutor’s repeated requests for
information before finally responding that the military base did not exist at
the time of the massacre.[326]
c. The
Role of Judges and Prosecutors
An
additional problem related to the classification of military secrets involves
judges’ failure to exercise their power to review military secrets in
confidence. Under the Guatemalan Constitution, all State organizations must
provide judges the assistance they need to carry out justice.[327]
Furthermore, the CPP authorizes a presiding judge to review in confidence
records withheld on grounds of military secrecy and to decide if such
withholding is appropriate.[328] A
judge may also place the records in the court file on a confidential basis in
order to make use of the information in the trial.[329]
In
theory, this judicial authority provides a check on the expansive definition of
military secrets. Nevertheless, although judges have such authority in relation
to the military, they often do not employ it because they fear retaliation from
military personnel.[330] In
the Myrna Mack Case, the Judicial branch did not compel submission of the EMP
records even though this method of confidential review was available.[331]
This may be due to the intimidation of judges in cases involving military
personnel. For instance, the judge in Cubulco, Baja Verapaz was kidnapped for a
day, apparently in order to pressure him to be lenient with the military and
PAC perpetrators of the Rio Negro and Plan de Sánchez massacres.[332]
Prosecutors
may also be reluctant to aggressively seek information from the military
regarding ostensible military secrets. For example, one special prosecutor who
subpoenaed high-ranking military personnel to testify in the Dos Erres massacre
case subsequently lost his job when the Attorney General refused to renew his
appointment.[333]
The
State can address its failure to comply with its legal duty under international
and domestic law to provide timely justice in the massacre cases by defining
the parameters of “military secrets.”[334]
In compliance with the Peace Accords, Congress should pass a statute clearly
defining that term.[335]
By doing so, the State can also meet its obligation under Article 203 of
the Constitution, which requires State organizations to provide the judiciary
with the assistance it needs to do its job.[336]
Defining military secrets, combined with adhering to the CPP Article 244
provision permitting confidential review of military documents by a judge, will
allow the State to appropriately balance national security concerns with its
obligation to provide justice.
The
president must fulfill his or her constitutional mandate to execute any law
passed by Congress[337] and
ensure that the Defense Ministry, including the military, obeys it. The
president has further authority to ensure compliance through his or her role as
supreme commander of the armed forces.[338]
Once the Defense Ministry, including the EMP, has clear instructions on what
constitutes a military secret, it will be obliged to turn over non-secret
material information concerning specific massacre cases to the Judicial branch.
That information will then be available in open court or to the judge in confidence,
depending on the nature of it.
The
State can also address its failure to comply with its legal duty under
international and domestic law to provide timely justice in the massacre cases
by enacting legislation on declassification of State-controlled information.
The Peace Accords call on Congress to carry out this task.[339]
A declassification policy would help make material information available to the
victims and their families in massacre cases.[340]
It would allow the State to release basic information about past locations,
functions, and personnel of military units, for example, that is material to
the prosecution of the massacre cases.
The
Secretaria de Analisis Estrategico
(“SAE”), the Secretariat of Strategic Analysis for the Office of the President,
the recently restructured civilian intelligence service, is working on a
definition of military secret and a policy for declassification.[341]
SAE Deputy Director Victor Moreira noted, however, that those policies will
only govern the activities of the SAE.[342]
The Ministry of Defense, including the military and intelligence agencies,
reportedly possess information vital to the prosecution of the massacre cases
and should be required to adopt commensurate policies to ensure that
information is available to the prosecutors.[343]
6. Misuse and Failure to Utilize Procedural
Mechanisms
Through
the misuse of, and failure to utilize, legal procedural mechanisms, the State
further fails to comply with its legal duty to investigate and provide an
effective remedy in the massacre cases. The Ministerio Público and members of
the judiciary appear to misuse several procedural tools to significantly delay
or deter the investigations and prosecutions of those responsible for the
massacres. They misuse procedure through formalism—using the pretense of
applying laws and procedures to ultimately undermine the effective prosecution
of massacre cases.[344] For
victims and their families, this formalism prevents effective use of the system
by creating impediments in filing cases and pursuing investigations in massacre
cases.[345]
Although the strict adherence to these procedures creates the appearance of
conformity with the law, the way in which the procedures are applied prevents
the timely administration of justice.
This
adherence to formalism contributes to extensive delay in the justice system. It
may take years from the filing of the complaint to the beginning of the
investigation and exhumation procedure.[346]
In the Rio Negro case, five years elapsed from the filing of the complaint to
the beginning of the exhumation, and an additional five years went by before
the beginning of the trial.[347] The
Pichec massacre case only recently began the exhumation phase, over five years
after the complaint was filed, and a trial is not likely to begin in the near
future.[348]
These cases, like most of the massacre cases, come from incidents that occurred
in the mid-1980s, meaning that the investigations were begun at least a decade
after the killings.[349]
Both Rio Negro and Pichec are examples of investigations that began after a
victim or witness filed a complaint, but complaints have not been filed in most
cases. Despite knowledge and evidence of past crimes, the Ministerio Público
has failed to accept its responsibility to investigate cases and pursue
investigations where they have not received specific complaints.
a. Failure
to Efficiently Process Amparo Challenges
Some
of the delay in massacre cases is attributable to the use of the amparo, a special appeal that defendants
can raise at any time during the case.[350]
These appeals must be based on constitutional grounds, and serve to protect the
constitutional rights of the defendant.[351]
The defendant may file the amparo at
any time during the trial to challenge the constitutionality of a trial court’s
decision.[352]
It is heard by the Court of Appeals, and may be appealed further to the Supreme
Court, and then to the Court of Constitutionality.[353]
While the amparo provides an
important protection for defendants’ constitutional rights, the process is very
time consuming. Since the amparo must
be resolved before the case can proceed, its misuse is criticized as one method
by which defendants may slow their proceedings and delay final justice.[354]
The
method by which the courts handle amparo
challenges is lengthy, adding significant delays during trial.[355]
Because the amparo proceeding may be raised at any time during trial or appeal,
these delays compound the frustration of timely justice.[356]
Another
source of delay in the massacre cases is the Ministerio Público’s insistence on
identifying victims before investigating or prosecuting massacre cases.[357]
The Ministerio Público reportedly lacks the technical resources and training to
identify victims itself.[358] In
addition to a lack of resources for identifying victims, the Ministerio Público
faces difficulty in identifying victims because of a lack of medical records
and DNA testing capability.[359]
Despite the difficulty in identifying victims, some prosecutors will only
pursue an investigation if the victims have been positively identified.[360]
Lic.
Mynor Eliséo Ogáldez, the District Attorney in Alta Verapaz responsible for the
prosecution of the Cuarto Pueblo massacre, highlighted this reluctance to
prosecute without positive identification of victims.[361]
The identification of the bodies of Cuarto Pueblo massacre victims is difficult
because the perpetrators burned the bodies beyond recognition. According to
Lic. Ogáldez, he cannot prosecute the Cuarto Pueblo massacre without identification
of the victims.[362] He
stated, “Guatemala . . . civil registrations records . . . legally prove a
person’s status [as dead or alive]. Because no one killed in the Cuarto Pueblo
massacre was identified, they are all still legally alive.”[363]
Lic. Ogáldez asserted that he did not bother to pursue the investigation
because the courts would not accept a prosecution for a murder of person who is
still legally alive.[364]
Other prosecutors, like Lic. Ogáldez, use this reasoning when explaining to
victims and their advocates why massacre cases have not proceeded.[365]
Prosecutors
have not pursued cases in which as many as 1,000 bodies were found in a mass
grave if those bodies could not be positively identified, even when
overwhelming evidence from other sources, including eyewitness testimony and
forensic evidence supports the murder charge.[366]
For example, in the Rio Negro case the defendants were convicted of murdering
only two people because those two victims were the only two out of the 250
victims of the massacre who were identified. No one was convicted of the other
murders.[367]
Identification
is a lengthy process, and the Ministerio Público has insufficient resources for that process.[368]
Thus, the formalistic insistence on identifying victims despite overwhelming
evidence of massacres impedes progress in the massacre cases, and is
unnecessary in light of the other evidence available to the Ministerio Público.
Continued insistence on identification before proceeding with investigation and
prosecution, if sufficient additional evidence exists, violates the right to an
effective remedy provided for under international law.[369]
c. Certification
of Conviction
The
requirement of a certification of conviction from the Execution of Sentence
Court, the court that oversees the final step in a conviction, is another
opportunity for delay after a conviction is obtained. The certification of conviction is issued by
the Execution of Sentence Court as the final procedure before a guilty party is
incarcerated.[370]
While the certification of conviction does not impede the prosecution of a
defendant, prosecutors sometimes delay prosecution of other defendants until
the court certifies the sentence of the first defendant. This poses a
particular problem in the massacre cases; the delay from the initial charge to
final judgment can be many years, during which time witnesses and other
evidence may become unavailable.
A
case is turned over to the Execution of Sentence Court only when the appeals
process is exhausted.[371]
This court does not impose a sentence, but supervises the sentence of the trial
court. The Execution of Sentence Court enforces the correct length of sentence
and handles complaints about prison conditions.[372]
While the supervision of the sentence is an important protection for the
defendant, the actual imposition of the sentence by the Execution of Sentence
Court is a mere formality since the sentence has already been imposed by the
trial or appeals court.[373]
The
Rio Negro case provides an example of how prosecutors may have misused the
certification process. Many of the defendants who were named in the initial
complaint are still in the military and could be easily found. Despite
obtaining three convictions in that case, the prosecutor has not proceeded
against other defendants, claiming that a certification of conviction must
first be obtained from the Execution of Sentence Court.[374]
In fact, the CPP does not require certification of conviction before other
defendants can be prosecuted.[375] By
incorrectly suggesting that further prosecutions cannot take place until all
the appeals have been exhausted and the sentence has been certified, the courts
are further delaying the prosecution of the higher-level participants. This
continued impunity constitutes the State’s failure to comply with its legal
obligations. If this practice of requiring a certification of conviction
continues, the likelihood of obtaining high-level convictions of those
responsible for the massacres will be further diminished.[376]
Plea
bargaining represents a potentially useful procedural tool for obtaining
convictions in massacre cases. But prosecutors have used plea bargaining in
only one of the massacre cases to date,[377]
and have failed to bring the intellectual authors of massacres to justice. By
failing to use plea bargains, prosecutors forfeit an important opportunity to
secure cooperation agreements of low-level actors that would allow the use of
testimony essential for convictions of high-level perpetrators and intellectual
authors.
Part
of the reluctance to use plea bargaining may result from the historical
prohibition on the practice.[378]
Plea bargaining was not contemplated under the former penal procedure code. The
code was revised in 1994 to permit plea bargaining in some cases.[379]
Despite the change in law, however, there has not been any significant plea bargaining
in massacre cases.[380]
Article
25 of the CPP outlines the situations in which plea bargaining may be used.[381]
While it does prohibit plea bargaining in some situations for certain
defendants, it does not categorically prohibit the practice.[382]
Because Guatemala lacks any national legal doctrine on plea bargaining,[383]
prosecutors sometimes intentionally narrowly interpret Article 25 of the CPP to
avoid plea bargaining to secure the convictions of high-level military
perpetrators or intellectual authors.[384]
For prosecutors who are the targets of intimidation or corruption, or for those
who simply lack the political will, the claim that plea bargaining is not
available provides a convenient excuse for not prosecuting those responsible
for the massacres.[385]
The
first plea bargaining agreement in a massacre case occurred in the year 2000
with the Dos Erres case in the department of Peten.[386] Two Kaibiles, non-commissioned special-forces soldiers, who allegedly
guarded the perimeter for the military unit involved but did not directly
participate in the killings, offered their testimony in return for asylum.[387]
On March 17, 2000, the two former soldiers testified in a closed hearing before
the Judge of the First Instance of San Benito, Peten.[388]
In the presence of the judge, the special prosecutor, the plaintiff’s
prosecutor, and a public defender, they provided detailed testimony of the
massacre and its participants.[389]
Each
witness gave his uninterrupted testimony and was then questioned by the
prosecutor, private prosecutor, and public defender.[390]
The witnesses named defendants, both soldiers and commissioned officers, as
participants in the killings.[391] As
a consequence of this “anticipatory evidence,” the prosecutor requested, and
the judge issued, arrest warrants. Currently, the PCN is in the process of executing
these warrants.[392]
Plea
bargaining in massacre cases is controversial. Some victims groups oppose
offering leniency to anyone involved with such atrocities.[393]
Reportedly, however, many victims feel that the true target of prosecutions
should be the intellectual authors and the commanders who carried out the
orders, and that lesser sentences for rank-and-file soldiers and civil
patrollers would be an acceptable trade-off.[394] The plea bargaining in the Dos Erres
case serves as an example of the potential benefits of such a compromise.
An
effective criminal policy adopted by the State would help address the specific
problems highlighted above, and the endemic problems within the system. The
adherence to formalism in the justice system that impedes effective resolution
of the massacre is the result of a failure to address the systematic problems
through executive attention. The State must establish effective policies that
address the delays in the system, and make those policies clear to every level
of the criminal justice system.
In
order to address the significant delays in the massacre prosecutions, Guatemala
must increase the efficiency of the court process. One possible solution is to
definitively include massacre cases in the jurisdiction of the regional courts
recently established to deal with high-level crimes and narcotics trafficking.
Jurisdiction alone is not enough, however. The judges and prosecutors in these
courts should be given special training on the law specific to massacre cases
and on methods for handling complex cases.
Although
the amparo is an important protection
for defendants, and is protected by the Constitution, the use of the amparo by defendants slows down the
legal system, which impedes timely resolution of the massacre cases. The
procedure governing amparo appeals
should be re-evaluated in light of the significant delays it causes in the
judicial process. The process should be streamlined to facilitate the timely
resolution of spurious constitutional challenges.
In
massacre cases, the Ministerio Público should
initiate prosecutions where there is sufficient evidence of a crime committed,
even when the victims have not been identified. The adherence to formalism
concerning identification is unnecessary in light of the other evidence
available to the Ministerio Público. Although not necessary for prosecution,
the Ministerio Público should commit more resources to forensic investigations
to ensure identification of the victims both to speed prosecutions and to
provide truth for the victims.
The
Attorney General should formally issue guidelines to his or her prosecutors
explaining the legality of pursuing subsequent defendants prior to obtaining a
certification of conviction for the initial defendants.[395]
Furthermore, the Attorney General should explicitly inform prosecutors that
this policy applies to all crimes, including massacre cases. Local prosecutors
should pursue the investigation and prosecution of every person named in a
complaint, as required by law.
Finally,
plea bargaining should be used as a tool in the prosecution of other massacre
cases, as it was in the Dos Erres massacre case. The Ministerio Público should
use plea bargains to the extent that they are offered to secure convictions of
those ultimately responsible for these crimes, the practice should be pursued
by the Ministerio Público generally, and in particular by those local
prosecutors who have the opportunity to get valuable testimony through
cooperation agreements. The Ministerio Público should develop specific plea
bargaining policies for local prosecutors, clarifying both the legality of the
practice under Article 25 of the CPP, and specifying which cases should make
use of the practice to facilitate the conviction of the highest-level perpetrators.
IV. SUMMARY OF RECOMMENDATIONS
A. Recommendations to Address Obstacles to
Justice
This
report identifies six specific obstacles that prevent the State from providing
timely justice in the massacre cases: intimidation; corruption; incompetence;
resource management/lack of resources; the lack of a definition for the term
“military secrets;” and the misuse and failure to utilize procedural
mechanisms. While the obstacles have been categorized as separate and mutually
exclusive problems, in reality they overlap and interact with each other in a
variety of ways.
•
The Ministerio Público should address
intimidation of judicial actors by providing better security to them as
required under the Protection of Judicial Actors Law. The Ministerio Público claims that this decree has not been
implemented due to lack of funding. It is the responsibility of the Ministerio
Público to implement the programs and request funds from Congress.
•
The Executive and Legislative branches should support protection of judicial
actors by fully funding the Protection of Judicial Actors Law. International
funding for this program would help reduce these threats and intimidation.
•
The judiciary should complement these steps by implementing its own security
initiatives to ensure the safety of judicial actors.
•
The Ministerio Público should assume an aggressive policy of investigation and
prosecution of those who threaten judicial actors.
•
The State should establish an independent body with investigative and
prosecutorial powers to address corruption within the legal system. That office
should be empowered to take complaints directly from the public, and should
include representation from civil society through private individuals or NGOs.
Reports from this office should be public to ensure transparency.
•
The Ministerio Público should confront corruption with vigorous investigation
and prosecution. Otherwise, corruption will only continue to expand.
•
The judiciary should implement strong internal review procedures for judges who
abuse their positions.
•
The State should undertake initiatives to diminish the influence of military
personnel in the judiciary and the Ministerio Público who may have been
involved in the massacres. The State should remove those former military actors
who are not carrying out the functions of their office, or who are using their
influence to affect the judicial process.
•
The State should provide better protection for judges and prosecutors, and
increased salaries, to ensure that the effects of corruption are minimized.
•
Longer terms for judges should be provided in order to reduce or eliminate
undue political influence.
•
To address the problem of insufficient legal education, the Guatemalan Bar
Association and the State should collaborate to modernize and standardize legal
education, including graduation requirements. The recommendations to expand law
school curricula put forth by the NCSJ, and adopted by the Universities of San
Carlos and Rafael Landivar, should be extended to the other law faculties.
•
To address the problem of incompetence in the judiciary, the Judicial branch
should require additional education for all current judges analogous to that
required in the school for new judges.
•
A similar training program should be initiated for prosecutors. Training should
focus on both investigative duties and courtroom responsibilities.
4. Resource
Management and Coordination/Lack of Resources
•
The State should increase its tax base and implement more effective enforcement
mechanisms to ensure compliance with tax collection. Without additional money,
the State will be constrained from implementing sustained reform in the justice
system.
•
The budgets of both the Ministerio Público and the judiciary should be
increased so they can effectively handle their current caseload, in addition to
massacre cases that may reach the courts in the future.
•
The State should implement a comprehensive criminal policy to help target the
areas in the system most in need of additional resources and address the
problems of coordination of resources and absorptive capacity. The current
NCSJ, previously discussed in relation to the need for a national criminal
policy, is well-positioned to develop this policy, and should be given the
mandate to do so.
•
The Ministerio Público should establish a well-trained and fully funded war
crimes unit to handle massacre cases. This unit would allow the prosecutors to
more effectively investigate and prosecute the massacre cases.
5. Definition
of Military Secrets and Declassification
•
Congress should develop a law defining “military secrets” in order to
facilitate access to material information that the military possesses about the
massacres.
•
The President must then execute such a law enacted by Congress and
ensure that the Defense Ministry, including the military, obeys it.
•
The judiciary should exert its powers under Article 244 of the CPP, which
allows the court to conduct confidential reviews of sensitive materials. This
would make material evidence available in the massacre cases, while recognizing
national security concerns.
•
A declassification procedure should be established by law to facilitate efforts
by judicial actors to obtain information from the State in general and the
Ministry of Defense specifically. This would be particularly useful in efforts
to establish intellectual authorship in the massacre cases. That law should
include procedures that allow private citizens to access that information.
•
The Ministry of Defense should be required to adopt the SAE declassification
policies to ensure that military information is available to the prosecutors.
6. Misuse
and Failure to Utilize Procedural Mechanisms
•
The State should adopt a comprehensive criminal policy to ensure effective and
efficient prosecution of the massacre cases.
•
The Ministerio Público should carry out its responsibility to initiate
investigations and prosecute the massacre cases. The Ministerio Público should
correct the institutional tendency to wait for victims to initiate prosecutions
and, instead, initiate investigations itself.
•
While the process of amparo is an
important constitutional protection, the mechanism for handling amparo appeals should be streamlined, so
that the constitutional challenges do not derail timely justice.
•
The judiciary should make clear that the massacre cases fall within the
jurisdiction of the proposed special narcotics and high-level crimes courts.
•
To the extent that plea bargains are offered to secure convictions of the
intellectual authors of the massacres, plea bargains should be pursued by the
Ministerio Público. In particular, local prosecutors who have the opportunity
to get valuable testimony through cooperation agreements should use this important
tool.
Under
international and domestic law, Guatemala has an obligation to investigate and
provide an effective remedy in the massacre cases. The State has failed to
comply with that duty largely because of the six obstacles to justice described
above. The recommendations discussed in this Report cannot be effective,
however, unless the State develops the political will to provide timely justice
in the massacre cases. New developments in Guatemala have the potential to
advance the massacre cases, but their success in doing so still remains to be
seen.
Upon
assuming office in January 2000, President Alfonso Portillo announced a number
of initiatives that could have important ramifications for the future
resolution of the massacre cases. A significant portion of his inaugural
address focused on human rights.[396]
President Portillo stated in his address that the Peace Accords are “State treaties.”[397]
This designation clarifies that the Accords are a contract between the State
and the guerrillas, rather than only between the previous administration that
signed them and the guerrillas.
President
Portillo also promised to implement the recommendations of the CEH Truth
Commission, including the establishment of a Peace and Harmony Foundation.[398]
The Foundation would oversee the implementation of the CEH recommendations. One
year later, due in part to opposition from Congress, this foundation still had
not been established.[399] In
his speech, the President also observed that in Guatemala, “a climate of
structural impunity persists,” and that his government was committed to the
“construction of a national justice system and the implementation of a
consensual State criminal policy.”[400]
The President also announced that he would immediately initiate an
investigation regarding the alleged role of state agents in the assassination
of Bishop Juan Gerardi.[401]
Even
though the Ministerio Público is
largely institutionally independent of the Executive branch, shortly after
President Portillo’s inaugural speech, various arrests were made in the Gerardi
case, including that of two military officers.[402]
This could indicate that the President’s commitment to human rights had effects
on the justice system. As of January 2001, according
to COPREDEH, the trial of the two military officers was scheduled for late
February.[403]
President
Portillo made these commitments on other occasions as well, including during a
private meeting with human rights NGOs in Washington, D.C. prior to his
election, where he invited the human rights community to visit Guatemala and
hold him accountable to these commitments.[404]
International human rights NGOs and foreign governments should accept President
Portillo’s invitation by sending delegations to further examine the progress of
the massacre prosecutions. The domestic and international attention generated
by visits to Guatemala could pressure its government to advance the massacre
cases. This could also provide support for the judicial actors involved in the
proceedings.
On
March 3, 2000, Guatemala presented its offer of the friendly settlement at the
IACHR.[405]
As discussed earlier, the offer contained three basic components: (1) an
admission of State culpability; (2) a commitment to support domestic criminal
proceedings against those responsible; and (3) an offer to negotiate
reparations with family members of the victims.[406]
While the friendly settlement should be commended, it remains little more than
a symbolic gesture until it bears fruit. Because neither the Ministerio Público nor the judiciary signed the agreement,[407]
they are arguably not directly bound by it.[408]
Even
so, one Guatemalan human rights activist suggested that this international
civil settlement might have positive effects on the domestic criminal
prosecution of massacre cases.[409]
With respect to the Dos Erres massacre, some of the government’s commitments
under the friendly settlement were fulfilled as of December 2000. The government
reiterated the State’s responsibility,[410]
and a commission was established to identify and compensate the victims of the
massacre.[411]
Unfortunately, the most important procedural advances have yet to occur, since
the arrest warrants were issued in March 2000.[412]
Strong
Executive branch support for the criminal proceedings could provide added
impetus to resolve the massacre cases. In Guatemala, as in all democracies,
constitutionally mandated separation of powers exists among the different branches
of government,[413] but
determined political will in the Executive branch reverberates throughout other
branches of government. The president also has substantial influence over the
various components of the State through the power to appoint and remove officials,
and influence over budgetary matters.[414]
As
mentioned by the human rights organization FAMDEGUA, the friendly settlement
presents both an opportunity and a challenge for Guatemalan human rights
organizations.[415]
Attention and publicity generated around the friendly settlement could have a
positive impact on the massacre cases. While the CEH and REMHI reports received
widespread public attention, neither report was an official admission of State
culpability for the many massacres for which the State was held responsible.
The admission of State responsibility could spark an increase in public
interest and support for domestic prosecution of the massacre cases.
Domestic
prosecutions may also move ahead due to the scheduled initiation of two
regional tribunals this year,[416]
one each for the western and eastern regions of Guatemala.[417]
These regional tribunals will adjudicate cases involving murder, kidnapping,
drug trafficking, robbery, and car theft.[418]
It is unclear, however, whether the jurisdiction of the regional tribunals will
extend to the massacre cases.[419]
Justice Napoleon Gutierrez of Guatemala’s Supreme Court of Justice stated that
he is not sure whether the tribunals could adjudicate massacre cases, while the
President of the Supreme Court stated that the tribunals would have
jurisdiction over those cases.[420]
The
regional tribunals will have safeguards to deal with at least four of the
obstacles to justice in the massacre cases. First, the United States Embassy in
Guatemala will assist the State with security measures for the protection of
judicial actors; this should decrease threats.[421]
Second, corruption and incompetence should be less of a problem because the
judges, prosecutors, and their staffs will be carefully selected based on their
past performance and integrity.[422]
Third, the regional tribunals will have better technical resources than other
prosecutorial offices and courts because they will be centralized and
coordinated.[423]
Fourth, more financial resources will go to training and increased salaries.[424]
Thus, if the regional tribunals do in fact have jurisdiction over the massacre
cases, and if they function according to their mandate, they are likely to be
more effective in adjudicating massacre cases than courts of the first instance
have been.
Another
initiative under the new government that could contribute to the advancement of
the massacre cases is the dismantling of the EMP and the Presidential General
Staff, and the restructuring of the SAE.[425]
The EMP has long been regarded as the center of clandestine military
intelligence and operations.[426] By restructuring and demilitarizing the SAE, President
Portillo proposes to establish something similar to a National Security
Council—an institution that will provide the president with strategic analysis
on major issues affecting governability.[427]
This distinguishes the restructured SAE from the former EMP, which often
ordered, as opposed to advised, the president.[428]
The
other primary objective of this initiative is to dismantle the infamous archivo, the military information center
that spied upon, maintained illegal records on, and directed illegal actions
against private citizens.[429]
A successful dissolution of the EMP could result in less interference by
the military in the investigation and prosecution of massacre cases.[430]
As part of a larger project of demilitarization, the dismantling of the
military intelligence apparatus could contribute to the strengthening of the
rule of law in Guatemala.
When
President Portillo’s new civilian team took over the SAE offices, however, much
of the files, computer disks, and other records were missing.[431]
The director of the SAE, Edgar Guttierez, filed a complaint with the Ministerio
Público,[432]
which opened an investigation that has yet to produce any results regarding the
whereabouts of the missing files.[433]
If recovered, those files could contain information regarding the massacres
themselves and the military’s efforts to obstruct their investigations.[434]
The SAE’s plan to establish a declassification policy, discussed above, could
then open those files and facilitate future requests by prosecutors for
information regarding military operations purportedly linked to the massacres
cases.[435]
Despite
these positive developments, commentators suggest that the massacre cases will
never advance under President Portillo[436]
because the founder of his party, and current President of the Congress, is the
former military dictator General Efrain Rios Montt.[437] Both the CEH and REMHI reports agree
that when General Rios Montt was in power, more human rights abuses were
committed than at any other time in the course of Guatemala’s thirty-six-year
internal armed conflict.[438]
FAMDEGUA, which is acting as the private prosecutor in the Dos Erres massacre,
has accused General Montt of being the intellectual author of that massacre.[439]
The former general has repeatedly denied any knowledge of the massacres that
occurred while he was Chief of State, or has blamed the insurgency for the massacres.[440]
President
Portillo’s initiatives in the area of human rights could help to advance the
massacre cases and spur judicial reform generally. The Portillo
administration should be congratulated on these first steps, but also reminded
that they are only a beginning. If these massacre cases move forward, that will
be concrete advancement without precedent for this government. However, until
these and other major human rights cases, such as the assassination of Bishop
Gerardi, are resolved, the promise of President Portillo’s first steps and good
intentions will remain unfulfilled.
* The project would not have been possible without
the cooperation of the lawyers, judges, and human rights advocates who met with
us in Guatemala. We would like to thank all those who took time from their
important work to help us in our research. In particular, we would like to
thank the survivors and families of victims who met with us and shared their
personal tragedies.
Acción Ciudadana, a non-governmental
organization (“NGO”) in Guatemala City working to strengthen civil society,
hosted the delegation in Guatemala. Acción
Ciudadana’s Executive Director Manfredo Marroquinn and office manager
Yolanda Hernandez provided extensive
assistance in setting up our meetings and making other arrangements. Members of
other organizations provided lengthy briefing sessions that helped our
delegation understand the current political situation, including Paul Seils and
Frank LaRue of CALDH, Helen Mack, Alejandro Sánchez, and Carmen Aida Ibarra of
the Myrna Mack Foundation, Victor Ferrigno of Proyecto Pro-Leyes, and Professor Sergio Fernando Morales of San
Carlos University.
The Myrna Mack Foundation also provided
two investigators who helped in translation and other research. Otto Navarro
and Astrid Escobedo were very helpful and accommodating of our packed schedule.
Peter Barwick helped in translation, and was an especially good guide for our
trip to Rabinal.
The members of the delegation were
Michael Sweeney, former Crowley Fellow, now with Debevoise & Plimpton; and
Crowley Scholars Nathanael Heasley, Rodger Hurley, Kara Irwin, Andrew Kaufman,
Nadine Moustafa, and Alain Personna. The mission was organized by the Crowley
Scholars. The Crowley Scholars also wrote the report, with editorial assistance
provided by Michael Sweeney and Fordham Law Professors Peggy Healy, Martin
Flaherty, and Tracy Higgins. Margaret Popkin, Executive Director of the Due
Process of Law Foundation, participated in part of the mission, reviewed the
draft report, and suggested a number of revisions. This report was carried out
under the auspices of the Crowley Program in International Human Rights of
Fordham University School of Law. Responsibility for the factual findings and
conclusions of the report, however, rests solely with the Crowley Scholars.
In preparation for the mission, the
delegation held weekly briefing sessions that were also attended by Professor
Healy. Professor Healy provided much-needed guidance at crucial stages of the
project, and assisted in fund-raising and mission planning. Her support was
invaluable.
Dean John Feerick of Fordham Law School
provided enormous support, both financial and moral, to the mission effort.
Without Dean Feerick’s vision and enthusiasm for the Crowley Program and this
mission, this report would not have been possible. Jim Tolan, President of the
Crowley Board of Directors, was also critical to the success of this mission.
The delegation is deeply thankful to the Dean, Mr. Tolan, and all donors (both
named and anonymous ones) to the Crowley Program.
In addition, we are
grateful for the hospitality of Stephen Kaufman and Marina Pinto Kaufman, who
graciously offered us the use of their home for our many meetings and writing
sessions. Marina Pinto Kaufman was also a great help in preparing the Spanish
version of the Report.
Finally, two law firms provided important
resources. Debevoise & Plimpton
contributed Michael Sweeney’s participation in this project. Shearman
& Sterling partially funded the trip, provided translation services for the
report, and funded distribution of the report. Saralyn Cohen and Jean Campbell
of Shearman & Sterling both put in significant time to the project. We
thank all the above for their help, without which the project would not have
been possible.
Please direct any questions or comments
regarding this article to: guatemalaproject@yahoo.com.
[1]. Recovery of Historical Memory Project (“REMHI”),
Guatemala: Never Again!, The Official Report of the Human Rights Office,
Archdiocese of Guatemala (“ODHA”) 137
(1999) [hereinafter REMHI Report].
[2]. See
id. at 134, 137 (observing that a majority
of the massacres occurred in 1981-1982). The conflict began in 1960 and ended
in 1996 with the signing of the Peace Accords. The REHMI report identified 422
massacres that occurred during the conflict, and concluded that the Army or
state-backed paramilitary forces committed 90.52 percent of those massacres
while the guerrillas committed the remaining 9.48 percent. The REHMI Report,
however, does not purport to be an exhaustive chronicle of the massacres and
suggests that more massacres may have occurred. See id. at 134 (defining massacres as “collective murders
associated with community destruction”); see
also Interview with Paul Seils, International Legal Director, Centro Para
Accion Legal y Derechos Humanos (“CALDH”) [Center for Legal Action and Human
Rights], in Guat. City, Guat. (Mar. 10, 2000) [hereinafter Seils Interview] (on
file with author).
[3]. See infra Part II (discussing Guatemala’s international and domestic
legal obligations to regarding violations of the right to life).
[4]. See
1 U.S. Dep’t. of State, 1999 Country
Report on Human Rights Practices, Guatemala 772 (1999) [hereinafter DOS Report] (explaining that although
those convicted were only low-level participants, human rights groups consider
the convictions important legal precedent).
[5]. Although the perpetrators of the massacres
violated a number of human rights, this report, like the investigative efforts
in Guatemala, focuses on the violation of the right to life. Other violations
of human rights that occurred during the massacres include rape, torture and
mass displacement. See generally, REMHI Report, supra note 1. This report does not imply that providing a remedy for violations
of the right to life alone would be sufficient to meet Guatemala’s international
obligations.
[6]. See
REHMI Report, supra note 1, at 290 (asserting that they recorded 41, 187 human
rights violations between 1980 and 1983 and that nearly eighty percent of the
massacres committed during the internal armed conflict were committed during
those years).
[7]. See id. at Part Two (discussing the types of violence employed
against the civilian population, the impact of militarization, and the planning
that made the massacres possible).
[8]. See, e.g., Grahame Russell, Unearthing the
Truth: Exhuming a Decade of Terror in Guatemala, (EPICA/CHRLA, May 1996).
[9]. See Guatemala: Memory of Silence, Report of the Commission on Historical
Clarification, at
http://hrdata.aaas.org/ceh/report/english/concl.html (last visited Apr. 3,
2001) [hereinafter Guatemala: Memory of
Silence]; REMHI Report, supra note 1, at 294 (defining a forced disappearance as “the
detention of a person whose fate is unknown because the detainee either becomes
entrapped in a clandestine detention network or is executed and the body
concealed”). See id. (citing the
Truth Commission for El Salvador).
[10]. See REMHI Report,
supra note 1, at 134 (explaining that the number of victims
includes the dead and the disappeared).
[11]. See id. (noting that the total number of massacre victims may be as
high as 18,000). The Guatemalan Army has admitted destroying 440 villages. See Steven E. Hendrix, Innovation in Criminal Procedure in Latin
America: Guatemala’s Conversion to the Adversarial System, 5 Sw. J.L. & Trade Am. 365, 384
(1998) (citing Richard Fenske, The
Sister Parish Movement: En La Buena Lucha, In the Good Struggle 40
(1996)).
[13]. See
infra Part II (discussing Guatemala’s
legal obligation to provide justice, as provided in international law, domestic
law, peace accords, and the friendly settlement agreement entered into with the
Inter-American Commission on Human Rights).
[14]. See
Interview with Lic. Helen Mack, Director, Fundación Myrna Mack, Member of the
Commission on Strengthening the Judiciary, in Guat. City, Guat. (Mar. 16, 2000)
[hereinafter Mack Interview]; Interview with Dr. Eduardo Daniel Barreda
Valenzuela, Justice, Supreme Court of Justice, Civil Section, in Guat. City,
Guat. (Mar. 13, 2000) [hereinafter Justice Barreda Interview].
[15]. See
Mack Interview, supra note 14; see also Hendrix,
supra note 11,
at 410-19 (examining the Guatemalan government’s overhaul of its Criminal Procedure
Code).
[16]. See Interview
with Frank LaRue, Director, CALDH, in Guat. City, Guat. (Mar. 11, 2000)
[hereinafter LaRue Interview] (on file with author).
[17]. See
American Convention on Human Rights, art. 1(1), O.A.S. Treaty Series No. 36,
1144 U.N.T.S. 123 (entered into force July 18, 1978) (Guatemala acceded May 25,
1978) [hereinafter American Convention], as
interpreted by Velasquez Rodriquez v. Honduras, Inter-Am. Ct. H.R. (Ser.
C), No. 4, paras. 174-77 (1988), available
at http://www1.umn.edu/humanrts/iachr/b_11_12d.htm (last visited Apr. 4,
2001) (obligating the Guatemalan government to investigate all human rights
violations occurring in its jurisdiction).
[18]. See
International Covenant on Civil and Political Rights, art. 2(3)(b), adopted Dec. 19, 1966, 999 U.N.T.S. 171
(entered into force Mar. 23, 1976) hereinafter ICCPR] (Guatemala acceded Aug.
5, 1992) (stating that each State Party should “ensure that any person claiming
a remedy shall have his right thereto determined by competent judicial,
administrative or legislative authorities”).
[19]. American
Convention, supra note 17, art. 1(1), as
interpreted by Velasquez Rodriguez v. Honduras, supra note 17, at paras. 174-77.
[20]. The governmental institution with
responsibility for a specific international obligation is not individually
bound by the treaties. Rather, these obligations are binding on the State as a
whole. Thus, identifying the institution that is not in compliance with the
State’s international legal obligations in a particular situation is not
legally material to a finding of State responsibility. See Vienna Convention on the Law of Treaties, opened for signature May 23, 1969, art. 26, U.N. Doc. A/Conf.
39/27, 8 I.L.M. 679 (1969) (entered into force Jan. 27, 1990) [hereinafter
Vienna Convention]; Sixth Report of the
Director of the United Nations Mission for the Verification of Human Rights and
of Compliance with the Commitments of the Comprehensive Agreement on Human
Rights in Guatemala (“MINUGUA”), The Situation in Central America: Procedures
for the Establishment of a Firm and Lasting Peace and Progress in Fashioning a
Region of Peace, Freedom, Democracy and Development, § IV, para. 55, at
http://www.minugua.guate.net/derhum/sixthrep. htm (last visited Apr. 4, 2001)
[hereinafter MINUGUA Sixth Report].
[21]. See ICCPR,
supra note 18, art. 2(3) (obligating Guatemala to investigate human
rights violations and provide remedies for victims of the violations).
[22]. See
American Convention, supra note 17, art. 1(1) (requiring Guatemala to investigate all of
the massacres).
[23]. See
Convention on the Prevention and Punishment of the Crime of Genocide, art. 4,
78 U.N.T.S. 277 (entered into force Jan. 12, 1951) [hereinafter Genocide
Convention] (Guatemala acceded Jan. 13, 1950); United Nations Treaty Series,
Genocide Convention, Participants, at http://untreaty.un.org/English/bible/
EnglishInternetBible/partI/chapterIV/treaty1.asp (last visited Apr. 3, 2001).
[24]. Guatemala acceded to the Inter-American
Court’s jurisdiction on Mar. 9, 1987. See
Jo M. Pasqualucci, Preliminary Objections
Before the Inter-American Court of Human Rights: Legitimate Issues,
Illegitimate Tactics, 40 Va. J.
Int’l. L. 1, n.205 (1990) (documenting the effects of Guatemala’s accession
to the Inter-American Court’s jurisdiction).
[25]. ICCPR,
supra note 18, art. 2(3). This articles provides as follows:
Each State Party to the present Covenant
undertakes:
(a) To ensure that any person whose rights or
freedoms as herein recognized are violated shall have an effective remedy,
notwithstanding that the violation has been committed by persons acting in an
official capacity;
(b) To ensure that any person claiming such a
remedy shall have his right thereto determined by competent judicial,
administrative or legislative authorities, or by any other competent authority
provided for by the legal system of the State, and to develop the possibilities
of judicial remedy;
(c) To ensure that the competent authorities shall
enforce such remedies when granted.
[26]. See
ICCPR, supra note 18, art. 2(3); see
also Vienna Convention, supra
note 20, art. 26 (providing that States are bound to comply
with treaties to which they are a party). Guatemala is not a signatory to the
Optional Protocol to the International Covenant on Civil and Political Rights
[hereinafter ICCPR Optional Protocol], which would allow the “[U.N.] Human
Rights Committee to receive and consider . . . communications from
individuals claiming to be victims of violations of any of the rights set forth
in the [ICCPR].” See ICCPR Optional
Protocol, preamble, adopted Dec. 16,
1966 (entered into force Mar. 23, 1976) A/RES/2200 A (XXI).
[29]. Id.
Specifically, Article 25 provides:
1.
Everyone has the right to simple and prompt recourse, or any other effective
recourse, to a competent court of tribunal for protection against acts that
violate his fundamental rights recognized by the constitution of laws of the
State concerned or by this Convention, even though such violation may have been
committed by persons acting in the course of their official duties.
2.
The State Parties undertake:
a.
to ensure that any person claiming such remedy shall have his rights determined
by the competent authority provided for by the legal system of the State;
b.
to develop the possibilities of judicial remedy; and
c.
to ensure that the competent authorities shall enforce such remedies when
granted.
[30]. See
id. art. 1(1) (declaring, “[t]he
State Parties to this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their jurisdiction
the free and full exercise of those rights and freedoms, without any
discrimination . . . . ”).
[31]. See
Velasquez Rodriguez v. Honduras, supra note
17, paras. 174-77 (1988) (stating, “[t]he State has a
legal duty . . . to carry out a serious investigation of violations
committed within its jurisdiction, to identify those responsible, to impose the
appropriate punishment and to ensure the victim adequate compensation” and
“[t]he State is obligated to investigate every situation involving a violation
of the rights protected by the Convention”).
[32]. Id.
at paras. 161-67, 176; see also
Godinez Cruz v. Honduras, Inter-Am. Ct. H.R. (Ser. C), No. 5, paras. 184-89
(1989), available at http://www1.umn.edu/
humanrts/iachr/b_11_14d.htm (last visited Apr. 4, 2001).
[33]. The CEH Report, Guatemala: Memory of Silence, concludes that some massacres
committed by the Army, including those in Rio Negro and Plan de Sánchez,
constituted acts of genocide as defined by the Genocide Convention. See Guatemala:
Memory of Silence, supra note 9,
at paras. 108-23. The Report states that in the massacres where it has
identified acts of genocide, the army and paramilitary forces aimed to “kill
the largest number of [members of a particular Mayan] . . . group
. . . . ” Id. at para.
113. The Mayan population of Guatemala is comprised of twenty-three distinct
ethnic groups that each speak a different language. These groups are divided
geographically, so that a massacre in one area could eliminate much of an
ethnic group’s population. See id. at
Map of Linguistic Communities of Guatemala.
Article II(a) of Genocide Convention defines genocide as “killing
members of the group” “with the intent to destroy, in whole or in part, a
national ethnical, racial or religious group.” Genocide Convention, supra note 23, art. II(a).
[36]. Guatemala has been a member of the U.N. since
November 21, 1945. See United Nations, List
of Member States, at http://www.un.org/overview/unmember.
html (last visited Apr. 3, 2001).
[37]. United Nations High Commissioner for Human
Rights, Principles on the Effective
Prevention and Investigation of Extra‑Legal, Arbitrary and Summary
Executions, E.S.C. Res. 1989/65, Annex, 1989 U.N. ESCOR Supp. (No. 1), U.N.
Doc. E/1989/89 (1989) [hereinafter U.N.
Principles].
[38]. United Nations Office At Vienna Centre for
Social Development and Humanitarian Affairs, United Nations Manual on the
Effective Prevention and Investigation of Extra-Legal, Arbitrary and Summary
Executions, U.N. Doc.
ST/CSDHA/12, U.N. Sales No. 91.IV.1 (1991) [hereinafter U.N. Manual].
[39]. See
Shabtai Rosenne, Practice and Methods of
International Law 19 (1984) (describing United Nations documents as
peremptory norms of international law).
[40]. U.N. Principles, supra
note 37, paras. 9-17; see
also U.N. Manual, supra note 38, at 16 (calling these qualities “[t]he fundamental
principles of any viable investigation into the causes of death”).
[41]. U.N. Principles, supra
note 37, paras. 16-18; see
also U.N. Manual, supra note 38, at 18-22 (explaining the grief families suffer and
the attempt to involve them in order to minimize the grief).
[42]. See
U.N. Principles, supra note 37, para. 19 (declaring that blanket immunity shall not
be granted under any circumstances, including a state of war, siege, or other
emergency).
[44]. See
Question of the Violation of Human Rights
and Fundamental Freedoms in Any Part of the World, with Particular Reference to
Colonial and Other Dependent Countries and Territories: Extrajudicial, Summary
or Arbitrary Executions, Report by
the Special Rapporteur, Mr. Bacre Waly Ndiaye, Submitted pursuant to Comm’n
on Human Rights Res. 1995/73, U.N. Comm’n on Human Rights, 52nd sess., Agenda
Item 10, at paras. 559, 565, U.N. Doc. E/CN.4/1996/4 (1996) (emphasizing the
urgent need to set up an international human rights mechanism with enough
resources to report publicly on the human rights situation and monitor human
rights violations, in addition to assisting with the existing governmental
obligations).
[46]. See
Political Constitution of the Republic
of Guatemala of 1985, preamble (amended 1993), reprinted in Constitutions
of the Countries of the World, Guatemala, Booklet 3 (Gisbert H. Flanz
ed. & Reka Koerner trans., 1997) [hereinafter Guatemalan Constitution].
[47]. According to the head of a non-governmental
organization that interprets the Guatemalan Constitution, these officials
include military personnel. See Interview
with Roberto Villeda Arguedas, Director, Centro por la Defensa de la Constitución
[Center for the Defense of the Constitution], in Guat. City, Guat. (Mar. 16,
2000) [hereinafter Villeda Interview].
[48]. Código Procesal Penal, Decreto Número 51-92 [Criminal
Procedure Code, Decree No. 51-92],
art. 16 (Raúl Figueroa Sarti ed. 1998).
[49]. See id. at arts. 24-25. The Código Procesal Penal (“CPP”) builds in
a modicum of prosecutorial discretion, but it is limited to circumstances other
than those involving serious rights violations. Id. art. 25.
[52]. See MINUGUA,
Acuerdos de Paz [Peace Accords], at http://www. minugua.guate.net (last
visited Apr. 4, 2001) (listing the various United Nations documents comprising
the Peace Accords).
[53]. See Comprehensive Agreement on Human Rights, The
Situation in Central America Procedures for the Establishment of a Firm and
Lasting Peace and Progress in Fashioning a Region of Peace, Freedom, Democracy
and Development, Mar. 29, 1994,
at §§ III, VIII, Guat.-Unidad Revolucionaria Nacional Guatemalteca [Guatemalan
National Revolutionary Unit] (“URNG”), U.N. Doc. A/48/928-S/1994/448
[hereinafter Comprehensive Agreement on
Human Rights], available at http://www.minugua.guate.net/acuerdos/human_rights.htm
(last visited Apr. 4, 2001). Section III states that “[t]he Parties agree on
the need for firm action against impunity,” and Section VIII provides that
“[t]he Parties recognize that it is a humanitarian duty to compensate and/or
assist victims of human rights violations . . . [to] be effected
by means of government measures and programmes of a civilian and socio-economic
nature . . . . ” Id.; see also Agreement on the Strengthening of
Civilian Power and Role of the Armed Forces in a Democratic Society, Sept.
19, 1996, Guat.-URNG, art. III(9), U.N. Doc. A/51/410-S/1996/853, available at http://www.minugua.guate.net/acuerdos/StrengtheningCivilianPower.htm
(last visited Apr. 4, 2001) (asserting that reform should be geared toward
preventing the cover up of impunity and to ensure justice).
[55]. Id.
art. III(9). This can be manifest by guaranteeing impartiality, objectivity,
universality, and equality under the law. See
id.
[56]. Discurso
de Toma de Posesión del Alfonso Portillo, Alfonso Portillo, Guat. City, Guat.,
Jan. 14, 2000 [hereinafter Portillo Inaugural Address].
[57]. The commitments outlined in the peace accords
were undertaken by the parties to the accords, namely the umbrella guerilla
group and the State. See The Agreement on
the Implementation, Compliance and Verification Timetable for the Peace
Agreements, Dec. 29, 1996, Guat.-URNG, U.N. Doc. A/51/796-S/1997/114, available at
http://www.minugua.guate.net/acuerdos/Implementation.htm (last visited Apr. 4,
2001).
[58]. See
Telephone Interview with Ronalth Ochaeta, Guatemalan Ambassador to the
Organization of American States (July 8, 2000) [hereinafter Ochaeta Interview]
(on file with author).
[59]. See
Andrés Oppenheimer, Surprise: Praise for
Guatemala, Miami Herald, Mar. 30, 2000, at 10A (describing
actions taken by President Alfonso Portillo to address human rights
violations); see also Statement of
the Republic of Guatemala before the Inter-American Commission on Human Rights,
Washington, D.C. (Mar. 3, 2000).
[60]. See
Statement of the Republic of Guatemala before the Inter-American Commission on
Human Rights, supra note 59 (outlining the three commitments agreed to by the
State); see also Inter-American
Commission on Human Rights, Organization of American States, Press Release, No. 2/00, para. III.C.9, at
http://www.cidh.oas.org/Comunicados/English/2000/Press2-00.htm (last visited Apr. 4, 2001) [hereinafter IACHR, Press Release].
[61]. See IACHR,
Press Release, supra note 60, at para. III.C.8 (noting that the Commission was
pleased that Guatemala was willing to work together to promote and protect
human rights, and to resolve as many cases as possible through friendly
settlement). This process was invoked under Article 48(1)(f) of the American Convention,
which states that the Commission shall help the parties reach a friendly settlement
“on the basis of respect for the human rights recognized in [the] Convention.”
American Convention, supra note 17, art. 48(1)(f).
[62]. See Interview
with Lourdes Mylene Woolfolk Contreras and Carlos Roberto Sandoval Aldana,
Lawyers for Comisión Presidencial Coordinadora de la Política del Ejecutivo en
Materia de Derechos Humanos [Presidential Commission in Charge of the Executive
Branch Human Rights Policy] (“COPREDEH”), in Guat. City, Guat. (Mar. 15, 2000)
(on file with author). COPREDEH is the governmental entity responsible for
handling this task. See id.
[64]. See
Interview with Victor Hugo Godóy, President, COPREDEH, in Guat. City, Guat.
(Mar. 14, 2000) [hereinafter Godóy Interview].
[65]. An inquisitorial system relies on extensive
pre-trial investigations and interrogations; the Judicial branch is largely
responsible for conducting pre-trial investigations. In addition, much of the
trial proceedings are written rather than oral. Conversely, under an
adversarial system, prosecutors, not judges, are responsible for
investigations, and the proceedings are largely oral. See Hendrix, supra note 11, at 392-94.
[67]. See
Interview with Luis Ramírez, Director, Instituto de Estudios Comparados en
Ciencias Penales de Guatemala [Guatemalan Institute of Comparative Criminal
Law], in Guat. City, Guat. (Mar. 15, 2000) [hereinafter Ramírez Interview] (on
file with author).
[68]. See
DOS Report, supra note 4, at 777-79 (describing generally the training and
responsibilities of PNC members).
[69]. See Hendrix,
supra note 11, at 413-18 (detailing the efforts of the U.S. Agency
for International Development (“USAID”) and MINUGUA, along with the efforts of
the Guatemalan government, to implement reform); see also Interview with Brian Treacy, Coordinator General, USAID,
Programa de Justicia [Justice Program], in Guat. City, Guat. (Mar. 15, 2000)
[hereinafter Treacy Interview] (on file with author); Interview with Joséfina
Coutiño, Asesora del Representante Residente [Advisor to the Resident
Representative], United Nations Development Program (“UNDP”), in Guat. City,
Guat. (Mar. 13, 2000) [hereinafter Coutiño Interview] (on file with author).
[70]. See, e.g., LaRue Interview, supra
note 16; see also
Interview with Miguel Ángel Racancoj, Diputado [Congressman], Presidente
Comisíon de Derechos Humanos [President, Human Rights Commission] (Mar. 13,
2000) [hereinafter Racancoj Interview] (on file with author); Ramírez
Interview, supra note 67; Villeda Interview, supra note 47.
[71]. See, e.g., Ramírez Interview, supra
note 67; see also
Racancoj Interview, supra note 70; Villeda Interview, supra note 47.
[72]. See supra Part II (detailing the factors contributing to Guatemala’s
failure to fulfill its legal obligations under domestic and international law).
[73]. See REMHI Report, supra
note 1, at xxxiii (stating that impunity stems from a lack
of accountability).
[74]. See id.; see also MINUGUA Sixth Report, supra note 20,
at VI.135 (explaining the armed forces’ expansion of influence without any
controls). One of “the root causes of impunity is the autonomy enjoyed by the
Army in its counterinsurgency and anti-subversive activities.” Russell, supra note 8,
at 27 (citing the Fourth Report of the Director of the United Nations Mission
for the Verification of Human Rights and of Compliance with the Commitments of
the Comprehensive Agreement on Human Rights in Guatemala, at 29, U.N. Doc.
A/50/878 (1996)).
[75]. See REMHI Report,
supra note 1, at xxxiii (describing the poor record of
investigation and prosecution of crimes against humanity).
[76]. See
Civil and Political Rights, Including
Questions of: Independence of the Judiciary, Administration of Justice,
Impunity, Addendum, Report of the Special Rapporteur on the independence of
judges and lawyers, Mr. Param Coomaraswamy, U.N. ESCOR, 56th sess., at
paras. 34-37, U.N. Doc. E/CN.4/2000/61/Add.1 (2000) [hereinafter Report of the Special Rapporteur on the
Independence of Judges and Lawyers] (describing the threats and
intimidation by judicial actors); see
also DOS Report, supra note 4, at 768-77 (detailing incidents of threats against
witnesses); Interview with Marco Antonio Aguilar Palma, Procurador Adjunto,
Procurador de los Derechos Humanos [Adjunct Human Rights Ombudsman], in Guat.
City, Guat. (Mar. 17, 2000) [hereinafter Aguilar Interview].
[78]. See, e.g., id. at para. 36
(finding that the vulnerability of judges to undue influence “had posed a
serious threat to the independence of the judiciary, as it appears that judges
have demonstrated an unwillingness to pursue cases concerning controversial
violations of human rights, thus undermining the right to due process of law”).
[79]. See
United Nations, Basic Principles on the
Independence of the Judiciary, at para. 2, U.N. Doc. A/CONF.121/22/REV.1
(1985) (stating that judges must be able to act independently of any
influences, either direct or indirect).
[83]. The Court of the First Instance is the first
court in which a case is heard. Overseen by one judge, the court supervises the
investigatory phase and handles the preliminary finding of sufficient cause to
proceed with the case. See Código Procesal Penal, supra note 48, art. 47.
[84]. See DOS Report,
supra note 4, at 770 (noting, for example, that observers found
credible evidence of judicial bias and harassment of judges in the Xaman
massacre case); see also Justice
Barreda Interview, supra note 14; Interview with Luis Alfredo Morales López, Judge,
Court of the First Instance, Salamá, in Salamá, Guat. (Mar. 15, 2000)
[hereinafter Morales Interview].
[85]. Fundación Myrna Mack, The Center of
Political Analysis of the Myrna Mack Foundation Report (June 1999).
[86]. See, e.g., DOS Report, supra note 4, at 780 (discussing the various death threats
received by judges in the Xaman massacre case and the Bishop Gerardi murder
case).
[87]. See, e.g., Lawyers Committee for
Human Rights, Myrna Mack Case, § 7 (Jan. 2000) (noting that the judge in
the Myrna Mack case resigned two
weeks after receiving the mock bomb).
[89]. See Interview
with Lic. Enrico Menéndez, District Attorney, Salama, in Salama, Guat. (Mar.
15, 2000) [hereinafter Menéndez Interview].
[91]. Interview
with Jorgan Andrews, Human Rights Officer, United States Embassy, in Guat.
City, Guat. (Mar. 13, 2000) [hereinafter Andrews Interview] (on file with
author).
[92]. See
DOS Report, supra note 4, at 775 (reporting the sudden resignation of Judge
Henry Monróy due to threats and intimidation).
[93]. See Lawyers Committee for Human Rights, supra
note 87, § 2, at 2 (detailing the background of the Myrna
Mack investigation).
[94]. See id., § 7, at 1 (indicating that Judge Monróy had received a mock
package bomb and was the victim of other acts of intimidation that resulted in
his resignation).
[95]. See
DOS Report, supra note 4, at 772
(reporting how the trial court judge experienced death threats from mobs who
were attempting to free three former PAC members).
[96]. See id. at 772 (summarizing the Rio Negro case and the attempts at
prosecution related to it); see also
Menéndez Interview, supra note 89 (noting that Menéndez is the prosecutor responsible
for the Rio Negro case); Seils Interview, supra
note 2 (CALDH provides legal advice for the Rio Negro
victims and their families).
[98]. See
Interview with Jesús Técu, Founder, Widows and Orphans of Rabinal, in Rabinal,
Guat. (Mar. 15, 2000) [hereinafter Técu Interview].
[100]. See
Interview with representative of Widows and Orphans of Rabinal who requested
anonymity, in Rabinal, Guat. (Mar. 15, 2000) [hereinafter Widows and Orphans of
Rabinal Interview] (on file with author); see
also REMHI Report, supra note 1, Versión Español, vol. III, at 188-91.
[101]. See
Widows and Orphans of Rabinal Interview, supra
note 100; see also REMHI Report, supra note 1, Versión Español, vol. III, at 188-91.
[102]. See
Widows and Orphans of Rabinal Interview, supra
note 100; see also REMHI Report, supra note 1, Versión Español, vol. III, at 188-91.
[103]. See
Técu Interview, supra note 98. Jesús Técu is a survivor of the massacre at Rio
Negro and the key witness in the Rio Negro case. Id.
[109]. See
Aguilar Interview, supra note 76; see also
Menéndez Interview, supra note 89; Morales Interview, supra note 84; Report of the
Special Rapporteur on the Independence of Judges and Lawyers, supra note 76, at para. 34 (noting that, among other persons,
prosecutors involved in human rights cases are “subjected to threats,
intimidation and harassment”).
[111]. See
Telephone Interview with Lic. Mynor Mélgar, former lead prosecutor on many
high-profile human rights cases, including the Myrna Mack and Dos Erres cases
(Mar. 28, 2000) [hereinafter Mélgar Telephone Interview] (on file with author).
[112]. See
Interview with Lic. Aura Elena Farfán, Member of the Board of Directors,
Familiares de los Desaparecidos de Guatemala (“FAMDEGUA”) [Families of the
Disappeared of Guatemala], in Guat. City, Guat. (Mar. 14, 2000) [hereinafter
Farfán Interview].
[113]. See
Patricia Bernardi et al., Exhuming
Political Violence in Guatemala: Forensic Anthropology and the Investigation of
Human Right Violations in “Dos Rs,” El Peten, Guatemala 20
(providing a description of the Dos Erres massacre and the events leading up to
it as compiled from witness testimony); see
also Russell, supra note 8, at 41-44 (recounting the details of the Dos Erres
massacre).
[114]. See
Bernardi et al., supra note 113, at 20 (describing the soldiers’ movement within the
village prior to the day of the massacre).
[117]. FAMDEGUA is a human rights group that
advocates on behalf of persons who were disappeared and killed during the
internal conflict.
[121]. In the Guatemalan legal system, victims may
be represented in proceedings by a querellante
adhesivo, or private prosecutor. The private prosecutor may compel the
public prosecutor to conduct specific investigations during the investigative
phase through the judge of the Court of the First Instance. The private
prosecutor may also introduce evidence and call witnesses at trial, and conduct
examinations of prosecution and defense witnesses. See Código Procesal Penal,
supra note 48, arts. 116-23. Because most victims lack the
resources to pay a private prosecutor, one is not available for every massacre
case, and even where there is a private prosecutor, it is still difficult to pursue
investigations. See Farfán Interview,
supra note 112.
[123]. In certain cases, the Attorney General may
appoint a Special Prosecutor [Fiscal Especial] to handle significant or
difficult cases. See Ley Organica del
Ministerio Público, Decreto Número 40-94 [Organic Law of the Public Ministry, Decree
No. 40-94], passed May 2, 1994, amended by Decreto Número 135-97 [Decree
No. 135-97], passed Dec. 10, 1997,
art. 44.
[124]. Bishop Gerardi, head of the Office for Human
Rights of the Archdiocese of Guatemala (“ODHA”) and the driving force behind
the REMHI Report, was murdered two days after the release of that Report. See Francisco Goldman, Murder Comes for the Bishop, New Yorker, Mar. 15, 1999, at 60
(providing details of the events leading up to the murder of Bishop Gerardi).
[126]. See
DOS Report, supra note 4, at 775 (reporting how Galindo was not only subject
to wiretapping and surveillance but was also threatened by “an unconfirmed plot
to kidnap one of his children”).
[128]. See
Monsignor Mario Rios Montt Interview, Director, ODHA, in Guat. City, Guat.
(Mar. 13, 2000) [hereinafter Monsignor Rios Montt Interview] (commenting that
his office receives complaints of threats to witnesses); see also Ramírez Interview, supra
note 67; Técu Interview, supra
note 98.
[139]. See
Interview with Dos Erres Witnesses Who Requested Anonymity, in Flores, Guatemala
(Mar. 17, 2000) [hereinafter Dos Erres Witness Interview].
[141]. See Ley Para la
Protección de Sujetos Procesales y Personas Vinculadas a la Administración de
Judicia Penal, Decreto Número 70-96 [Law for
the Protection of Administrative Staff and Persons Related to the
Administration of Criminal Justice, Decree No. 70-96], passed Aug. 27, 1996.
[144]. See
Report of the Special Rapporteur on the
Independence of Judges and Lawyers, supra
note 76, at para. 141.
[145]. Interview
with José Quezada, President of the Supreme Court, in Guat. City, Guat. (Mar.
16, 2000) [hereinafter Justice Quezada Interview] (on file with author).
[146]. See Report of the Special Rapporteur on the
Independence of Judges and Lawyers,
supra note 76, at para. 141.
[147]. See id.; see also Justice
Barreda Interview, supra note 14; Hendrix, supra
note 11, at 370 (quoting the former President of the Supreme
Court as stating that corruption is “one of the major problems facing the
Guatemalan justice system, including within the judicial branch”).
[149]. See
Inter-American Convention Against Corruption, Mar. 29, 1996, preamble, 35
I.L.M. 724, at
http://www.oas.org/EN/PROG/JURIDICO/english/Treaties/ b-58.html (last visited
Apr. 3, 2001) (citing the “responsibility of States to hold corrupt persons
accountable in order to combat corruption”).
[152]. See
Vienna Convention, supra note 20, art. 18 (obliging States to “refrain from acts which
would defeat the object and purpose of a treaty” that they have signed but have
not yet ratified).
[153]. See supra note 266 and accompanying text (setting forth Guatemala’s duties
under the Comprehensive Agreement on
Human Rights).
[159]. See
Ley de la Carrera Judicial, Decreto Número 41-99 [Judicial Career Law, Decree
No. 41-99], passed Oct. 27, 1999
[hereinafter Judicial Career Law].
[161]. See
Interview with Claudia Samayóa, Director, Rigoberta Menchú Foundation, in Guat.
City, Guat. (Mar. 14, 2000) [hereinafter Samayóa Interview].
[162]. See id. (stating that the judge wishes to remain anonymous); see also DOS Report, supra
note 4, at 5.
[166]. Report of the Special Rapporteur on the
Independence of Judges and Lawyers,
supra note 76, at para. 49;
see also DOS Report, supra note 4, at 7-8.
[167]. See
Interview with Napoleon Gutiérrez Vargas, Justice, Supreme Court of Justice,
Criminal Section, in Guat. City, Guat. (Mar. 13, 2000) [hereinafter Justice
Gutiérrez Interview]; see also Report of the Special Rapporteur on the
Independence of Judges and Lawyers, supra
note 76.
[168]. See
DOS Report, supra note 4, at 767 (observing that intimidation of witnesses,
prosecutors, and judges is a pervasive problem).
[170]. See
MINUGUA Sixth Report, supra note 20, at para. 140; see
also Interview with Javier Ménem, Director, Cobán office of MINUGUA, in
Cobán, Guat. (Mar. 14, 2000) [hereinafter Ménem Interview].
[172]. See
id. at 18 (noting that a 1996 firing
of 500 employees by the judiciary has been criticized as politically
motivated).
[184]. See
MINUGUA Sixth Report, supra note 20, at para. 140 (outlining the deficiencies of the judiciary
due to a lack of legal training, which, in turn, contributes to bad legal
habits and practices); see also
Monsignor Rios Montt Interview, supra
note 128.
[185]. See
Farfán Interview, supra note 112; see also
Seils Interview, supra note 2; Técu Interview, supra
note 98.
[188]. See
Farfán Interview, supra note 112; see also
Seils Interview, supra note 2; Técu Interview, supra
note 98.
[191]. See Report of the Special Rapporteur on the
Independence of Judges and Lawyers,
supra note 76, at para. 141; see
also LaRue Interview, supra note 16; Interview with Lic. Victor Ferrigno, Director of
Proyecto Pro-Leyes [Pro-Law Project], in Guat. City, Guat. (Mar. 11, 2000) [hereinafter
Ferrigno Interview] (on file with author); Interview with Lic. Miguel Meurth,
Director, Centro De Analisis Forense y Ciencias Aplicadas [Center for Forensic
Analysis and Applied Sciences], in Guat. City, Guat. (Mar. 14, 2000)
[hereinafter Meurth Interview] (on file with author); Treacy Interview, supra note 69.
[192]. See
Seils Interview, supra note 2; see also Report of the Special Rapporteur on the
Independence of Judges and Lawyers, supra
note 76, at para. 34 (noting that the Special Rapporteur
received allegations that the influence of the military had “hindered the
speedy, impartial administration of justice, and in some [cases] thwarted due
administration of justice”).
[193]. See Report of the Special Rapporteur on the
Independence of Judges and Lawyers,
supra note 76, at para. 34-37 (relating incidents and circumstances
where the judiciary was hampered from pursuing prosecutions due to threats).
[194]. See supra Parts IV.B.1.a, IV.B.2.a.i (detailing the types of threats
experienced by the judiciary and the problems of bribery and corruption in the
judiciary).
[195]. See
Interview with Francisco de Leon, Acting Director of the ODHA team of forensic
anthropologists, in Guat. City, Guat. (Mar. 14, 2000) [hereinafter de Leon
Interview] (on file with author).
[200]. See
supra Part IV.B.1 (describing the
intimidation brought to bear on officials of the justice system by former
members of the military).
[202]. See
Aguilar Interview, supra note 76; see also
Hendrix, supra note 11,
at 369 (stating that although there are basic laws against corruption, there is
a lack of enforcement and compliance); DOS
Report, supra note 4, at 780.
[204]. See id.; see also infra
Part IV.B.4.a (discussing the lack of resources Guatemalan legal institutions
have and its deleterious effect on the administration of justice).
[206]. See
Report of the Special Rapporteur on the
Independence of Judges and Lawyers, supra
note 76, at para. 169 (f) (providing recommendations to deal
with “judicial corruption and influence peddling”).
[208]. The Office of the Human Rights Ombudsman
operates semi-independently from other branches of the government to assist
other State institutions with human rights issues. See Aguilar Interview, supra
note 76.
[209]. Report of the Special Rapporteur on the
Independence of Judges and Lawyers,
supra note 76, at para. 169 (b).
[211]. See
Judicial Career Law, supra note 159, arts. 39-41 (providing a list of actions prohibited
by judges).
[212]. ICCPR,
supra note 18, art. 2(3); see
also supra Part II.A.1 (outlining the international treaties that compel
Guatemala to examine violations of “the right to life” and remedies for such
violations).
[213]. See supra Part I.A.2 (detailing those materials put out by the United Nations
to supplement the treaties that bind governments by providing “persuasive
authority” through “customary international law”).
[214]. See Interview
with Steve E. Hendrix, Asesor Juridico y Coordinador de Programas de Justicia,
Oficina de Iniciativas Democraticas [Judicial Advisor and Coordinator of
Justice Programs, Office of Democratic Initiatives], USAID, in Guat. City,
Guat. (Mar. 14, 2000) [hereinafter Hendrix Interview]; see also Monsignor Rios Montt Interview, supra note 128; Andrews Interview, supra note 91; Aguilar Interview, supra note 76; LaRue Interview, supra
note 16.
[215]. See
Mack Interview, supra note 14; see also
Aguilar Interview, supra note 76. Aguilar teaches law part-time at the San Carlos
University. See id.
[216]. See
Report of the Special Rapporteur on the
Independence of Judges and Lawyers, supra
note 76, at paras. 73-76 (noting the lack of uniform
standards in legal education and the lack of testing of new lawyers prior to
admittance to the bar to ensure adequate qualifications to practice law); see also Mack Interview, supra note 14.
[217]. See
Mack Interview, supra note 14; cf. Report of the Special Rapporteur on the
Independence of Judges and Lawyers, supra
note 76, at paras. 73-76.
[220]. See Hendrix,
supra note 11, at 365 (noting that the new Code is the “first of
its kind in Latin America,” and supplants an ‘inquisitorial system” with an
“adversarial system”); see also
Justice Quezada Interview, supra note
145.
[221]. See
de Leon Interview, supra note 195; see also
Andrews Interview, supra note 91; Treacy Interview, supra note 69; Menéndez interview, supra note 89.
[222]. See
de Leon Interview, supra note 195; Andrews Interview, supra note 91; Treacy Interview, supra note 69; Menéndez Interview, supra note 89 (stating that evidence that is “fruit from a
poisonous tree” is unusable at trial).
[223]. See
infra notes 229-238 and accompanying text; see also supra note 65 and accompanying text (emphasizing that it is the
prosecutor’s role to conduct pre-trial investigations); LaRue Interview, supra note 16; Ramírez Interview, supra note 67; Mack Interview, supra
note 14; Morales Interview, supra note 84.
[226]. See
Mack Interview, supra note 14; Seils Interview, supra
note 2; Farfán Interview, supra note 112; Ramírez Interview, supra note 67.
[229]. See id. Paul Seils is the international legal director for CALDH,
which serves as a legal advisor for the victims of the Cuarto Pueblo massacre. Id.
[230]. See
Interview with Lic. Mynor Eliséo Ogáldez, District Attorney for Alta Verapaz,
in Cobán (Mar. 15, 2000) [hereinafter Ogáldez Interview]. Lic. Ogáldez is the
district attorney responsible for the Cuarto Pueblo massacre case. During the
delegation’s meeting with Lic. Ogáldez, he looked through his office’s case
file on Cuarto Pueblo and gave the delegation a detailed account of the
massacre itself and the steps his office has taken to investigate it.
[236]. Id.
There is no physical evidence of the death of individuals because none of the
bodies have been identified due to the fact that only charred fragments remained
of their skeletons. See id.; see also infra Part IV.B.6.b (noting that without positive identification of
victims, the prosecution’s investigation into the massacre is slow to proceed).
[238]. See
REMHI Report, supra note 1, at 137 (stating that the Army was in constant
contact with the base, and a helicopter provided air support for the mission).
This illustrated that the massacre was the “result of strategic plans and tactics
in a campaign directed by the officers and carried out by the troops.” Id.
[241]. See
Ogáldez Interview, supra note 230; see also Código Procesal Penal, supra note 48, art. 308.
[243]. See
supra notes 230-236 and accompanying text. The justice of the peace who
initiated the investigation into the Cuarto Pueblo massacre took no steps to
record the chain of custody for the evidence recovered at the site of the
massacre. See id.
[246]. See id.; see also Ménem
Interview, supra note 170 (stating that a justice of the peace failed to
preserve the chain of custody for evidence in the Cuarto Pueblo case).
[248]. See id. (noting that in addition to moving from an inquisitorial to
an adversarial system, judges are also receiving new training programs).
[251]. See
Treacy Interview, supra note 69; see also Quezada
Interview, supra note 145 (stating that a lack of training for judges has led
to many due process and human rights problems); Justice Barreda Interview, supra note 14. Justice Barreda also stated that judges delegate
some of their key duties to unqualified staff, who further contribute to the
incompetent handling of cases. See id.;
see also Ramírez Interview, supra note 67.
[256]. See Report of the Special Rapporteur on the
Independence of Judges and Lawyers,
supra note 76, at paras. 48-49 (noting that the United Nations
Verification Mission in Guatemala found that the ruling in the Xaman case
“served to increase the climate of impunity in the country.”); see also DOS Report, supra
note 4, at 770.
[257]. See Justice
Gutiérrez Interview, supra note 167; see generally
Report of the Special Rapporteur on the
Independence of Judges and Lawyers, supra
note 76, at para. 50.
[259]. See
Meurth Interview, supra note 191. Although prosecutors are prohibited from taking
private clients, many currently do. See
id.
[261]. Only judges taking new positions are required
to undergo training. See Judicial
Career Law, supra note 159, art. 18.
[262]. Report of the Special Rapporteur on the
Independence of Judges and Lawyers,
supra note 76, at para. 64.
[264]. Only judges taking new positions are required
to undergo training. See Judicial
Career Law, supra note 159, art. 18.
[269]. See id. at art. 91 (allocating no less than three percent of the
State’s budget to physical education and sports).
[270]. See REMHI Report,
supra note 1 at xxxiii (describing how impunity has allowed those
responsible for the violence to retain their positions of power and privilege,
thus influencing the conduct of the Army, police, military commissions, and
civil patrol, contributing to further violence against the people); see also Report of the Special Rapporteur on the Independence of Judges and
Lawyers, supra note 76, at para. 141; supra
Part IV.A and IV.B.2 (discussing how obstacles such as corruption and lack of
financial and technical resources hinder the fulfillment of Guatemala’s legal
commitments).
[271]. See
Hendrix Interview, supra note 214. USAID in Guatemala estimates that only 6,000 people
paid taxes last year. Id.
[272]. See
Hendrix, supra note 11, at 413-18
(citing USAID as the principal donor assisting the Guatemalan government to
reform its justice system, but noting the contributions of other donors such as
MINUGUA, the Canadian, Dutch, and Spanish governments, the Inter-American
Development Bank, and the European Union); see
also Report of the Special Rapporteur
on the Independence of Judges and Lawyers, supra note 76, at para. 78; Coutiño Interview, supra note 69.
[273]. See
Steven E. Hendrix, Guatemalan “Justice
Centers”: The Centerpiece for Advancing Transparency, Efficiency, Due Process,
and Access to Justice, 15 Am. U. Int’l L. Rev. 813, 819-20 (2000) (outlining
USAID initiatives that called for not only training, but the creation of
functionally integrated institutions and procedures to gain support from the
community and municipalities).
[276]. See
Hendrix Interview, supra note 214; see also
Ramírez Interview, supra note 67; Ogáldez Interview, supra note 230.
[279]. Id.;
see also Interview with Lic. Mario
Leal, Special Prosecutor in the Dos Erres case, in Guat. City, Guat. (Mar. 14,
2000) [hereinafter Leal Interview].
[282]. Ferrigno
Interview, supra note 191; see also
Justice Barreda Interview, supra note
14; Aguilar Interview, supra note 76.
[283]. Hendrix
Interview, supra note 214. MINUGUA has highlighted these problems, stating,
[d]isparities have been
noted in the capacity of national institutions to absorb international
cooperation and to use the technical assistance provided. This means that the
substantial effort made by one institution may be counteracted by deficiencies
in the functioning of another. This problem suggest that, at a time of
far-reaching institutional change, there is a need to create opportunities for
dialogue and inter-institutional cooperation which are genuinely able to
overcome the compartmentalization of State responsibilities.
MINUGUA
Sixth Report, supra note 20, §V, at para. 95.
[284]. See supra Part IV.B.4.a; see also
Leal Interview, supra note 279 (discussing obstacles to the fulfillment of
Guatemala’s legal obligations).
[287]. Interview
with Sara Romero, Assistant to Special Prosecutor Mario Leal, in Guat. City,
Guat. (Mar. 13, 2000) [hereinafter Romero Interview] (on file with author).
[294]. See Agreement on the Strengthening of
Civilian Power, supra note 53, at preamble, art. IV(15).
[296]. See
Mack Interview, supra note 14. Helen Mack was one of two individuals serving on the
Committee and related the difficulties facing the Committee to the delegation. See id.
[304]. See
Interview with Lic. Mariana Valdezón, Founder of the Fundación de Antropología
Forense de Guatemala [Foundation for Forensic Anthropology of Guatemala], and
Director of the Equipo de Antropología Forense de la ODHA [Forensic
Anthropology Team of the ODHA], in Guat. City, Guat. (Mar. 20, 2000)
[hereinafter Valdezón Interview] (on file with author). Lic. Valdezón stated to
the delegation that due to the intensive training received in forensic
anthropology by different local archeologists conducting exhumations, nearly
all the reports currently submitted comply with the Model Protocol for a Legal
Investigation of Extra-Legal, Arbitrary and Summary Executions (“Minnesota
Protocol”), promulgated by the U.N. Manual. See
U.N. Manual, supra note 38 (emphasizing the need for developing and adopting
international standards for the investigation of deaths in countries where
extra-legal, arbitrary, and summary executions are alleged to have occurred).
[305]. See Interview
with Lic. Alejandro Sánchez, Staff Attorney, Fundación Myrna Mack, in Guat.
City, Guat. (Mar. 11, 2000) [hereinafter Sánchez Interview] (on file with
author); see also Interview with Lic.
Victor Moreira, Deputy Director of the Secretaría de Análisis Estratégico, in
Guat. City, Guat. (Mar. 16, 2000) [hereinafter Moreira Interview] (on file with
author).
[307]. See Guatemalan Constitution, supra note 46, art. 154 (providing that “officials are depositories
of authority, legally responsible for their official conduct, subject to the
law and never above it.”).
[309]. See REMHI Report,
supra note 1, at 134 (defining massacre as the “collective murders
associated with community destruction”). The total number of murders, however,
may be as high as 18,000 if the disappeared are also included. See id.
[310]. See id (estimating that fifty-five percent of the military forces
deemed responsible for the massacres acted alone).
[312]. See
Moreira Interview, supra note 305; see also Fundacion Myrna Mack, Secreto de Estado [State Secret] 6 (Ariel Garrido ed.
1999).
[313]. See
Guatemalan Constitution, supra note 46, at art. 30. According to Colonel Douglas Barrera
Guerra, the officer in charge of the Departamento de Información y Divulgación
del Ejercito (“DIDE”) [Army Chief of Information and Dissemination], the Army’s
public information office, the Army’s policy is to respond to requests for
information by the Ministerio Público within twenty-four hours. See Interview with Colonel Douglas
Barrera Guerra, in Guat. City, Guat. (Mar. 16, 2000) [hereinafter Col. Barrera
Interview]. Colonel Barrera added that the army destroys its files every ten
years, so it no longer possesses information on the massacre cases sought by
the Ministerio Público. See id.
Colonel Barrera also noted that until recently the army did not maintain many
written records. He suggested that the oral tradition comes from the indigenous
roots of the Army. See id.
[314]. See
Guatemalan Constitution, supra note 46, art. 30. In a country under a common law system, the
Judicial branch as interpreter of the law would more precisely define a general
term in a constitution. See Black’s Law Dictionary 276 (6th ed.
1990). Under Guatemala’s civil law system, however, Congress rather than the
Judicial branch has this authority. See Roberto
G. MacLean, Judicial Discretion in the
Civil Law, 43 La. L. Rev. 45, 45-46
(1982).
[315]. See
Mack Interview, supra note 14 (suggesting the judiciary should control the
definition of military secrets).
[316]. See id.; see also Fundacion Myrna Mack, supra note 312, at 10-11. According to Col. Barrera, however, each
ministry sets its own policy as to what constitutes a military secret. See Col. Barrera Interview, supra note 313.
[319]. See
REMHI Report, supra note 1, at 105, 107-08 (discussing the Army’s control of the
Estado Mayor Presidencial (“EMP”),
the State security apparatus).
[320]. See
Lawyers Committee for Human Rights,
supra note 87, § 2, at 5-6 (discussing Helen Mack’s failed attempts
to gain access to shielded information, upheld by domestic courts as military
secrets).
[322]. See id. (discussing the need for information in understanding the
EMP’s organizational structure and practices).
[323]. See id. (reviewing the judicial authority under the Criminal Procedure
Code to review documents in camera to determine validity of military secret
assertions but failure of judiciary to make such inquiries).
[335]. See also Agreement on the
Strengthening of Civilian Power, supra
note 53, at IV.E.52(b) (stating need for a law regulating the
classification, declassification, and access to military information).
[337]. Id.
art. 183(a); see also id. art. 183(e)
(requiring the President to “approve, promulgate, execute, and cause the
execution of the laws”).
[343]. See DOS Report,
supra note 4, at 772 (detailing existence of the “military diary,”
an alleged military intelligence dossier recording the military’s abduction,
torture, and killing of Guatemalans during the period 1983-1985).
[344]. See
Report of the Special Rapporteur on the
Independence of Judges and Lawyers, supra
note 76, at para. 48.
[345]. See
Interview with Lic. Nery Rodenas, Coordinator of ODHA, in Guat. City, Guat.
(Mar. 16, 2000).
[347]. See
Rio Negro case file (on file with Crowley International Human Rights Program,
Fordham University School of Law).
[348]. See
Pichec case file (on file with Crowley International Human Rights Program,
Fordham University School of Law).
[365]. See
Seils Interview, supra note 2; see also
Ménem Interview, supra note 170; Meurth Interview, supra note 191.
[367]. See
Rio Negro case file (on file with Crowley International Human Rights Program,
Fordham University School of Law).
[368]. See supra Part III.B.4.b (explaining how inadequacy of financial and
technical resources impedes proper prosecution and remedies); see also Meurth Interview, supra note 191.
[369]. See supra Part II.A.1 (discussing the various international treaties
that require Guatemala to provide adequate remedies for violations of the right
to life).
[377]. See
supra note 139 and accompanying text; see also infra notes 386-394 and accompanying text.
[383]. See
Hendrix, supra note 11, at 400 (asserting that Guatemala lacks legal
doctrine, case law or Latin American comparative law on plea bargains).
[389]. See
Leal Interview, supra note 279. Under Article 348
in the CPP, in special circumstances anticipatory evidence can be
provided in a pre-trial hearing. See Código Procesal Penal, supra note 48, art. 348. This procedure is usually reserved for
circumstances where the witness is unable to attend the trial. In the case of
Dos Erres, however, the witnesses believed their lives would be in danger if
they testified during the actual trial. The prosecutor admitted that it would
be difficult to guarantee the safety for them and their families and thus
requested the anticipatory evidence hearing. See Leal Interview, supra
note 279.
[390]. See
Dos Erres Witness Interview, supra
note 139. The public defender’s participation is required to
protect as much as possible the rights of the potential defendants who might be
named during the hearing. See Leal
Interview, supra note 279.
[393]. See
Interview with Grupo de Apoyo Mutuo (“GAM”), in Guat. City (Mar. 17, 2000)
[hereinafter GAM Interview] (on file with author).
[395]. See
Ley Orgánica del Ministerio Público, Decreto Número 40-94, passed May 2, 1994, amended
by Decreto Número 135-97, passed
Dec. 10, 1997, art. 11 (providing
the Attorney General with the ability to issue guidelines to all prosecutors
and other officials under his authority).
[399]. See
Telephone Interview with Carmen Aida Ibarra, Myrna Mack Foundation, in Guat.
City, Guat. (Jan. 25, 2001) (on file with author).
[402]. See
Elder Interiano et al., Tres capturados
por asesinato de monseñor Girardi [Three
Captured in the Murder of Monseñor Girardi], Prensa Libre, Jan. 22, 2000 (on file with the authors)
(reporting on the impact of these arrests after it was believed that the investigation
had come to a standstill).
[403]. Letter
from Victor Hugo Godóy, President, COPREDEH (Feb. 1, 2001) (on file with the
American University International Law Review).
[404]. See
Interview with Alfredo Forti, Advisor to President Portillo, Guat. City, Guat.
(Jan 17, 2000) (on file with author).
[405]. See
Andres Oppenheimer, Surprise: Praise for
Guatemala, Miami Herald, Mar.
30, 2000, at 10A (reporting that the IACHR characterized the offer as “an
example for the hemisphere”).
[410]. See
Informe General del Gobierno de Guatemala en Relación al Caso C.I.D.H.
11.681 Aldéa Las Dos Erres,
[Guatemalan Government General Report Regarding the C.I.D.H. Las Dos Erres case
11.681], COPREDEH (2000).
[413]. See
Guatemalan Constitution, supra note 46, arts. 157, 183 (establishing the functions of the
Executive and Legislative branches of the Guatemalan government).
[414]. See id. art. 183(j) (providing that the
President shall annually submit a budget to Congress for “expenditures of the
State”).
[419]. Id.;
see also Quezada Interview, supra
note 145 (reporting that the President of the Supreme Court of
Justice stated that these tribunals would have jurisdiction over massacre
cases).
[425]. See Alfonso Portillo asumió la Presidencia [Alfonso
Portillo Assumes the Presidency], Prensa
Libre, Jan.
15, 2000 (on file with the authors).
[426]. See
REMHI Report, supra note 1, at 107-08 (containing a detailed description and
analysis of role of EMP).
[431]. See
Secretaría de Análisis Estratégico
Denuncia Anomalías Encontradas
[Secretariat of Strategic Analysis
Denounces Found Anomalies], Prensa
Libre, Jan. 25, 2000 (on file with the authors).
[433]. See
Buscan archivos extraviados de varíos
casos [Lost Files From Many Cases are Sought], El Periódico, Jan. 27,
2000 (on file with the authors).
[437]. See Dieciocho años desde el Golpe de Ríos Montt, [Eighteen
Years Since the Rios Montt Coup], El
Periódico, Mar. 23, 2000 (on
file with the authors).
[438]. See
generally Guatemala: Memory of Silence, supra
note 9; see also REMHI Report, supra note 1 (describing the nature of the atrocities committed
during the Guatemalan civil war).