May 2, 2013

Guatemala's Challenge with Justice

Waiting_large
crédito de foto:Ben Parker

The historic trial of former head of state Efrain Rios Montt and his chief of military intelligence, Mauricio Rodriquez Sanchez had been suspended since Friday, April 19, but yesterday it the trial reconvened amid complex legal challenges, powerful political forces, and intense emotions by the people of Guatemala. Many Guatemalans have been protesting peacefully outside the Constitutional Court for the trial to continue and had come from long distances, from the mountainous region of Ixil, requesting that the trial continue.

To speak with us more about this historic trial is our special guest:  Kelsey Alford-Jones of the Guatemala Human Rights Commission based in Washington, D.C. and  Emi MacLean, Legal Officer at the Open Society Justice Initiative, in New York.

To read more about the Ríos Montt trial go to the Open Society Foundation's blog.

The show can be heard here:

http://hablaguate.com/recordings/122-guatemala-s-challenge-with-justice

http://www.blogtalkradio.com/mesapublica/2013/05/01/mesa-pblica

Bios:

Emi MacLean is a legal officer for freedom of information and expression with the Open Society Justice Initiative. Her work focuses on freedom of information and expression internationally. MacLean worked previously as a staff attorney at the Center for Constitutional Rights on issues related to Guantánamo and other forms of executive detention, including through litigation, legislative reform, and international advocacy. She also worked for Médecins Sans Frontières (MSF, or Doctors without Borders) as the deputy head of mission for MSF’s HIV/AIDS care and treatment project in South Africa, and later as the U.S. director of the MSF Campaign for Access to Essential Medicines.

http://www.opensocietyfoundations.org/people/emi-maclean

Kelsey Alford-Jones is directed of Guatemala Human Rights Commission. She joined GHRC in September of 2008. She came to Washington from Portland, Oregon, where she taught History and Language Arts at a bilingual alternative school for Latino students and worked as a medical interpreter. She moved to rural Costa Rica in 2006 to coordinate and develop an Environmental Education Program at the Sarapiquí Conservation Learning Center, a small community non-profit. Kelsey graduated with honors from Grinnell College in 2005 with a degree in History and Spanish. You can reach Kelsey at kajones@ghrc-usa.org or 202-529-6599.

SHOW TRANSCRIPTION FOLLOWS

Co-Host Kara Andrade: Good afternoon everyone and welcome to our Mesa Pública, our Public Round Table. We feature guests and discussions, commentary and analysis about current events and trends in Central America. I'm Kara Andrade in Texas and I'm the host for the show. Nic Wirtz also joins us from Guatemala. Hi Nic.

Co-Host Nic Wirtz: Happy to be on the show as co-host.

Kelsey: Today's show is called Guatemala's Challenge with Justice. The historic trial of former Head of State Efrain Rios Montt and his chief of military intelligence Mauricio Rodriguez Sanchez had been suspended since Friday, April 19. But yesterday, the trial reconvened amid complex legal challenges, powerful political forces, and intense emotions. Many Guatemalans have been protesting peacefully outside the Constitutional Court for the trial to continue and had come from long distances from the mountainous regions of Ixil requesting that the trial move forward. To speak with us more about this historic trial are our special guests Kelsey Alford-Jones, Director of a Guatemalan Human Rights Commission based in Washington, DC, and Emi McLean, legal officer at the Open Society Justice Initiative in New York. Emi and Kelsey, are you both there?

Kelsey: This is Kelsey.

Emi: Yes, this is Emi. I am here and glad to be here.

Kara: Great, so let's begin. To provide some background for listeners, the fate of the genocide trial against former dictator Efrian Rios Montt remains unclear at best. This week, Guatemala's constitutional court passed the case over to a judge who last week called for all testimonies to be annulled, a move which would have put the trial back to square one, back in November of last year. Despite Gloria Patricia Porras' rulings, a constitutional court will decide if the proceedings were legal. So far the court has voted on 6 of 12 petitions in the case but there is no clear resolution to this. Nic, would you like to begin?

Nic:  You’ve been observing the trial and are one of the coordinators of the Rios Montt trial blog and the bilingual summaries on the website which helps because a very complex and confusing process which has many in the local media and international media confused and there's been some incorrect reporting during the trial. Can you talk about where this is now and the case has not been annulled? How long before we get to hear a final verdict on where the case has been annulled and what would happen if it is annulled?

Emi: Thanks so much and I'm definitely glad to be here representing the Rios Montt Trial blog which is RiosMontt-Trial.org. I'm glad that you've been able to access that. What is interesting is it wasn't even that complex legally on procedural issues up until April 18th. Up until April 18th, there were days of testimonies from over a hundred witnesses. More than a dozen experts who were providing testimony on the witness side about horrendous massacres in the area known as the Ixil Triangle in Guatemala between 1982 and 1983. Sexual violence, the destruction of houses and property, the forced displacement of large populations of predominantly Ixil communities and on the witness and then on the expert side also information about military chain of command. What genocide and crimes against humanity are in Guatemalan law and international law and actually on April 18th, the trial was heading towards what many expected to be an imminent conclusion with closing arguments that were believed to be a day or two days away. And yet, on that day on April 18th, all of the defense attorneys walked of the trial in what they said was a peaceful protest.

They reconvened in the afternoon in a different court, the court of Judge Flores who was the judge who oversees some of the pretrial proceedings. She had previously been recused from the case and had recently been reinstated as a pretrial judge. And what she said was that she was annulling the entire trial and forcing the proceedings to be brought back to the day that she as removed from the case which was November 2011. In November 2011, Rios Montt and Rodriguez Sanchez, the two defendants in the case were actually not even defendants in the case. Rios Montt was a congressperson in that time and was benefiting from congressional immunity. And so really, the action by Judge Flores, this pretrial judge who oversees some of the preliminary proceedings would have completely annihilated all of the advances in the case over the last  17 months which have been very significant and it was really on the eve of the close of the trial. So, what happened the next day when the trial reopened. the judge, the tribunal in the trial court recognized that action to reopen the annulment of the entire trial only moments before it was due to close.

The trial court recognized that as an illegal action and suspended the trial temporarily to allow some of the legal challenges to proceed and to reach some sort of conclusion. And so that has actually, you know, a trial that was actually dealing with the facts of what had happened, witness statements, expert testimony, then became legal wranglings that as you rightly acknowledge were very confusing for many people in dealing with procedural issues and looks like much more of a mess than things had looked for people for the weeks before that. Only yesterday after a number of decisions had been made by the constitutional court and by other courts was the trial able to reconvene. However, a trial that was, as I mentioned, only moments from reaching closing arguments was yesterday caught up in legal wranglings around who the defense attorneys are, whether public defenders could represent the defendants when the defense attorneys who had walked out did not reappear, whether there were violations of defense rights that could be remedied. And so, again the trial seems to be caught up in some of these, some procedural issues and some substantive issues, but not expecting closing arguments when the trial reopens tomorrow but expecting some other legal challenges that may complicate things further.

Kara: We were originally going to have Kate Doyle speak with us but she had to do an emergency plane ride down to Guatemala. So, is it too much to hope that tomorrow we get a verdict?

Emi: I think it's probably too much to hope that tomorrow we'll get a verdict. I do think a verdict is possible in the case which of course no one had thought would be the case you know months ago or years ago when this trial started and I think everyone needs to recognize that the fact that this trial is happening at all decades after the crimes were committed against a military head of state and his then chief of military intelligence is a phenomenal advance in a challenge to impunity is the first time that there's a genocide trial against a former head of state that's happening in a domestic court rather than an international tribunal. But when the trial reopened yesterday after about a week and a half of suspension, there were new attorneys who were representing the defendants and so that raises a whole array of other issues with the attorneys requesting additional time to prepare some of those questions left outstanding. The order to annul the proceedings that was made by this preliminary judge still unresolved by any higher court. I would certainly be surprised if there was a final verdict tomorrow. I do believe a final verdict still could be imminent but would certainly not stake too much on that because there are definitely challenges that are still outstanding.

Kara: You know, I wanted to give a space for Kelsey to jump in too. I want to hear more about what your organizations have been doing around the trial and specifically your work with the communities rallying to support the trial. Kelsey, could you jump in there and maybe after that Emi, maybe you could talk about what the partnership that you pioneered with the Open Society Foundation and the (NOT SURE)

Kelsey: The Guatemala Human Rights Commission has been carefully monitoring the process, both from our office in Guatemala city as well as from Washington, and I think first and foremost working to ensure that those brave survivors in Ixil, the lawyer's case, the prosecutors and the judges are able to do their work and carry out their testimony without fear of violent repercussions, of threats, of attacks and that's been a huge concern considering the fact that a number of the actors in the case have already received numerous threats throughout the evolution of the case and there's a lot of concern about their safety. So that's one focus.

We have also been staying in close contact with the other organizations supporting the case in Guatemala and have been coordinating efforts to provide both international [support] that we're doing in coordination with organizations like the Open Society Justice initiative. And our staff members have been in the courtroom to help provide up-to-date information to the international community. In fact, one of our staff members actually testified as an expert witness in the case around her prior work as an anthropologist with the forensic anthropology foundation. So, we've been working very closely with those involved in the case.

We've also been doing a lot of work from the DC office to keep the international community educated about what's going and engaged in helping because we feel that the attention from the international community is incredibly important in helping keep the trial on track. And, we've done a lot of work to keep the US Embassy and US State Department engaged in the process for the very same reason. And we were pleased to see that the US Ambassador to Guatemala, Mr. Chacon, did finally arrive at the trial in mid-April and was there again towards the end of April. And we're also very pleased to see that the Ambassador-at-large for Global Criminal Justice Steven Rapp was able to travel to Guatemala and meet with a lot of the actors involved with the case and make some strong public comments regarding the importance of justice for a country like Guatemala in their process working towards peace and reconciliation.

So our advocacy efforts have also been a key part of our work over the last month and finally we've done some strong efforts to engage the international league and most recently we facilitated both a series of letters written to the Guatemalan constitutional court from different groups that were interested in expressing the importance of upholding the rule of law and we also did a grassroots action in which almost five thousand people from the US and all around the world wrote to the constitutional court magistrate calling on them again to uphold the rule of law and to respect the victims' right to justice and this effort I think has been really important and a lot of the pressure on the case and a lot of the tension in Guatemala is coming from public pressure on the case and the fact that there are threats being published daily in the Guatemala press.

There are constant pressures on the judges and there is really an effort to make this a political case rather than a case that's really being carried out in the court room by following the proper procedures and the rule of law and so we're coordinating a large international effort seeking to push the case back into the realm of the courtroom and to try to counteract the very detrimental and kind of aggressive public statements that have been coming out from sectors that are working to ensure that impunity is maintained for these high level public officials.

Kelsey: And Emi, I just wanted to reaffirm what Kelsey said about the importance of international attention on ensuring the integrity of the trial and the security of all that are involved. The fact that there is an opportunity for due process to take place and for the trial to move forward is something that needs to be protected and is protected as long as there is a public in Guatemala and a public international league that maintains an interest in the case and monitoring of the case and for that reason we are working together with Center for Justice and International Law, the International Center for Transitional Justice, the National Security Archives based in Washington, DC, and Plaza Publica which is Guatemalan investigative media outlet, online investigative media outlet to engage in international monitoring.

We have a website, RiosMontt-Trial.org and monitors who are in Guatemala from the beginning of the trial until the end of the trial we hope recording what is happening on a day to day basis doing legal analysis as well as broader political analysis to what is happening to make sure that we can ensure an accurate representation of how the trial proceeds. And given all that we have seen, the confusing legal wrangling over the last week and a half, especially the really fast paced testimony of witnesses and experts over the first few weeks. It has been quite a valuable tool and certainly a very interesting process to monitor. And one of the things about the website, the Rios Montt Trial website is that it may be one of the few sources of public information about the trial so I think in that way it already is making an impact. You know.

Kara: I want to get back to something you said to me which really resonated with me and I've heard Kate Doyle say. You said that its the first time ever that a genocide trial has been pushed through a domestic court. And I think that Kate always says that in the history of the world. Could you talk about the significance of this trial for Guatemala and the world because Guatemala is such a small country that a lot of times people just don't even know what's happening but why is it significant that this is happening?

Emi: Well, for decades, victims and survivors have pushed for the brutality that they have been affected by, the human rights violations that they have experienced to be heard by anybody. There has been numerous cases that have been brought before the interamerican commission of human rights and the interamerican court of human rights where the interamerican court has recognized the obligation of the Guatemalan government to investigate human rights violations and prosecute, identify those who are accountable and exhume bodies and has identified that there is sufficient evidence to support that crimes have been committed and that crimes need to be prosecuted or that human rights violations have been committed and there needs to be a prosecution for the violations. This case in particular was brought in 2000. So, its really 13 years after the initiation of the case that we're seeing the prosecution move forward. And for the first years after the case was brought, very, very, very little happened. So the fact that we're actually seeing this case move forward is a result of a variety of different factors. Its at a really critical moment.

A fact that has not been lost on many people is that the current president of Guatemala, Otto Perez Molina, was a former military leader. He actually had been implicated  at an earlier stage in the trial by one of the witnesses as having some role in some of the abuses. So that was obviously something that was really controversial in Guatemala which the presidency made a statement about but it definitely shows the sensitivity and the significance of the fact that this is something that can happen in Guatemala and in the domestic process at a time where perhaps you would not expect that to happen. Some of that is the result of some of the judicial reforms that have taken place in Guatemala. In recent years, certainly some of the significant credit is due to the attorney-general of Guatemala, Claudia Paz y Paz, who has pushed for a number of important cases in his not allowed impunity to reign, not just in human rights cases, but also in narcotrafficing cases, corruption cases, and other cases. So there's a variety of factors that are in play and so a lot of people are looking at this trial and saying this is significant not just for the prosecution of human rights violations, not just for ensuring that genocide and crimes against humanity will not go unpunished but also demonstrating that there have been significant reforms in Guatemala both on the political side to ensure that there is some independence in the judiciary and that the process can go forward unimpeded.

Kelsey: With everything that Emi has said and just wanted to reiterate that this case is maybe not the only trial that passed in the Guatemalan courts in the past couple of years. Reforms have made it possible for these kind of high impact or high risk courts to [push through] very historic cases of massacres and forced disappearances. But this particular case because of the elements that Emi was mentioning of holding such powerful former head of states accountable implicating none other than the current president shows that this case can be a kind of barometer for the house of Guatemalan judicial system and public …kind of seeing where Guatemala is as far as actual separation of powers, transparency, and kind of the political will available to uphold the rule of law in Guatemala and the implications of the case are important for all of the reasons that Emi mentioned around issues of... But also looking at the other types of human rights violations that are occurring in Guatemala right now. Its really important for Guatemalans to know that there is a functioning judicial system and if impunity remains for crimes of the past it would be very difficult for justice for crimes of the present. And in the last month over the period of time that the genocide trial has unfolded, there has been an unending string of attacks (NOT SURE) of community leaders, of land rights leaders, of Guatemalan leaders speaking (NOT SURE) repeat in Guatemala and one of the important things about this case outside the importance of accountability in this particular case is the larger issue of (NOT SURE) historic memory and justice looking forward as a step to saying never again in Guatemala. And that is right now as we see this similar patterns unfold of violence against community leaders and many of them again are carried out without the (NOT SURE) and the Guatemalan state has been unable or unwilling to provide appropriate protection to community leaders and human rights activists, has done little to investigate and in fact has been complicit in the criminalization of these same activists or the violence itself of the military's massacre of indigenous protesters in October of last year. And so if this case can come to a conclusion and if the judge is able to make an independent ruling based on the evidence presented and if their able to do that without being threatened or killed and if the witnesses are able to give their testimonies in court, and we are able to see accountability, that can go hopefully, to ensuring that Guatemala is moving forward in a process that can ensure justice for the crimes that we are seeing everyday. But it is as an organization that is working not only on these justice issues but also on the issue of access to land and natural resources and violence against women, and these other areas on which human rights violations is occurring, its heartbreaking to see the trial move forward at the same time that our partners are being killed again. The trial has immense implications for all sectors in Guatemala.

Kara: Thanks Kelsey. Nic, you had some questions on the specifics of the trial.

Nic: I did. I wanted to dig in a bit deeper into the trial itself. I was wondering if we can talk about the defense’s actions but also what Rios Montt's defense against the allegations made against him.

Emi: Kelsey, you want me to take that or you want me to try to respond.

Kelsey: Go ahead and I'll jump. And you'll get to ask.

Emi: So there's defense in very political trials like this one or trials that become very political or politicized. It is not very surprising that you see a defense strategy include both legal elements and political elements and that is certainly something that we've seen here. The defense strategy has, I think, more heavily weighed on the political side than on the legal side. Whichever defense attorneys have been present. The defense attorney for instance, Garcia Gudiel, who as there yesterday spoke to journalists after the brief hearing reopened the trial after the suspension and spoke about the three judges as criminals and actually Nazis. And that's very strong language and not the first time that the defense attorneys have really relied on the media to impugn the integrity of the trial and impugn the trial itself and the independence of the judges as part of a broader strategy in their representation of the defendants. In terms of the legal challenges, some of what we have seen and actually the defense, on the other side of that, the defense attorneys have actually been very slow in bringing their witnesses forward. The reason that the trial did not conclude already is because defense witnesses who had been identified to the court did not appear on either two or three consecutive days before the trial had been suspended and when the court tried to identify where they were, were unable to identify where they were, and so at this point the judge is giving the defense attorney a final period to identify the remaining witnesses.

So there's certainly been a strategy that is both political and legal of trying to delay the process as much as possible both through political and legal means. In terms of the questions that they've asked, that the defense attorney's have asked the witnesses and the experts, I would say a lot of them fall along the lines of asking witnesses or survivors of massacres who have testified about things that they have experienced in their community, whether they had or knew of guerrillas who were in their community before a massacre had occurred. I think partly to challenge the credibility of some of the witnesses and partly to identify from the defense perspective that they saw something of a legitimate military strategy and response. Another part of the defense strategy gleamed from the questions that you've seen from the defense attorney to the witnesses, there have been both questions about the ethnicity of both the victims and the communities and also the ethnicity of the alleged perpetrators of the military of the self defense patrols and what I would gleam from that in terms of what the legal strategy of the defense to be, would be something to challenge the genocide claims by asserting that there wasn't necessarily targeting of an ethnicity group.

That there was a broader group of people who were victims and that some of those that were alleged to be perpetrators also may have been part of the indigenous population as part of a defense strategy to say that this could not have been genocide. Genocide also requires, has a component, has an intent to requirement, and I think one of the other things that you've seen in the defense's legal strategy, to the extent that it has come out already is an assertion that there was not demonstrated intent. And I would say lastly in terms of the legal side and not the political side, you see questions about whether there was sufficient command responsibility whether you could demonstrate that there was actually knowledge of Rios Montt and his head of military intelligence Rodriguez Sanchez, the two defendants, where they had knowledge of the massacres and the violations that have been alleged.

Kelsey: I would...

Emi I would definitely reiterate the points I made at the beginning. Sorry Kelsey. That I think many have noted and that we have seen reaffirms this that the strategy appears more to be a strategy of delay and of political challenges have more so than a development of legal challenges.

Kelsey: Yeah, I meant to reiterate that as well. I think that it has been actually quite shocking in the case to see how the defense lawyers employed just constant theatrics (NOT SURE) to dredge its kind of make a mockery I think of the process and that contrast starkly with the case of the prosecution which Emi mentioned in the beginning brought forward over a hundred witnesses, dozens of expert witnesses, thousands of documents.

They have built a strong legal case and they are in the court room ready to move forward in accordance with the proper legal procedures and they are coming up against a defense that is very political and is very much focused on distracting and deferring the process and the kind of tactics that they've employed such as leaving, trying to, even from the very first day when the Rios Montt Case was new and needed more time to prepare for the case and up until the last day before the trial was suspended when the whole legal [defense] got up and left. The decorum has been I think really at least watching from afar has been pretty shocking to see how little effort has gone into actually carrying forward a legal defense and a legal strategy and I wonder if that's because perhaps they never really thought that it would go to trial or they never really though that the case would actually move forward and the closer that the trial got to coming to a close perhaps the more threatened they felt or the more political tactics they had to employ because there really has been actually very little legal strategy employed by them.

Kara: You know, I want to follow up a bit with that because last week an organized delegation of international judges and human rights leaders who went to Guatemala specifically to monitor the trial and I was transcribing that press conference and I found some comments that Avelino Guillén de Perú said. This really caught my attention he said, "Nunca hemos conocido este tipo de juicio”. I've never known a trial like this. He went on to state where the legal procedures that were happening in Guatemala in the Rios Montt trial were in a sense being used to stall the very machine of justice. And it showed, he was just completely appalled at the process and it kind of goes at what you're saying Kelsey that all these different tactics are being used to kind of to stall. And I guess, I wanted to get both of your impressions on that. Why would anyone want to stall this kind of procedure? What's behind it?

 I'm guessing that they think that that's their best strategy at this point. What's been interesting is that the actual facts of this case have not been brought so much into question and in fact as the trial has unfolded there have been more public statements by  himself recognizing the historic nature of this case, recognizing the fact that he was in Ixil, recognizing the fact that there were massacres, and I think the defense themselves are in fact not questioning the number of deaths. They aren't questioning the fact that these massacres occurred but they are saying they were carried out in the context of war. And so I don't really have an answer other than they probably see a political battle as easier to win than probably a legal battle given the evidence at hand.

Kara: Nic, I think that Nic dropped off you got a question. Nic, are you there? Ok. I got Nic's question here. Its on the list as my question as well and it has to do in part with what is going on with Judge Barrios and Judge Flores and just the way they are bouncing this back and force. And Nic's question is, is this a professional issue or something deeper at work and one of the questions we're having is there have been a lot of editorials whcih goes to demonstrate that the Right is fragmented in Guatemala and there is fragmented interest. I'm wondering what both your thoughts are on this.

Emi: I would go back to one of the thoughts that Kelsey made earlier on about how this trial is as much about historical truth and memory in Guatemala and the creation of a reputable set of historical facts that can stand the test of time, as much about as the trial of these two individuals I think for many in Guatemala. The rallying cry of the people, of the protesters on the street on both sides, or the protesters presenting in commentary has been hubo genecido or no hubo genecido, there was genocide or there was not genocide. And that's not an accident. its not about whether or not Rios Montt was guilty or innocent.

The protesters are crying its about whether a particular atrocity was committed or was not committed. And that something it was point that was made somewhat delicately but with great significance by the truth commission in Guatemala, the prosecution certainly and the civil parties that were involved in this case really do see the significance of putting forward the facts before a judicial body to lay the groundwork for the case of genocide in the Ixil community and the question is going to be whether the trial court sees that there are, if the trial court can get to that point, whether the trial court sees that there are sufficient factual evidence and legal evidence presented to justify the claim of genocide and I do think that your question speaks to whether the splits in Guatemala and what those come down to and I really think that is to the base of this and something that is being hotly debated in Guatemala right now and I would say that that probably does have some role. That the positions that have been taken, the legal resolutions that have been taken by some of the judicial authorities in this case and some of the judicial inciting that you see among the different judicial bodies which includes both Judge Flores who annulled the proceedings and in a very controversial decision, the actions of the trial court, the actions of the appellate court, and the actions or inactions of the constitutional court, some of the interplay is happening at that level as well although not in ways that have been made public at this point.

Kara: What's true also is that in the midst of this historic trial, we've also seen President Alfonso Portillo who went in extradition to United States, he was facing corruption charges in Guatemala and yet was released from them. Its almost as if there are two Guatemalas, one that wants to see this brave new dawn of a Guatemalan justice system and there is this other Guatemala that is so mired in the corruption and military mano dura? I wonder if you agree with that.

Kelsey: I would definitely agree. One thing that this genocide has made clear and kind of made very to the international community is are the deep tensions and divisions in the Guatemalan society and that's in civil society, that's in public institutions, that's in judiciary, that's among foreign and current public officials, it's among stuff that were part of the revolutionary movements. Guatemala is living a very complex time and a lot of that has to do with a lack of really of true reconciliation of dealing with the atrocities that were committed and really looking to move forward by recognizing the truth and of what happened in the past and holding people accountable and moving forward in a way that hopefully ensures that these types of violations don't occur again but there are many sectors that benefit from impunity.

It’s not necessarily those that were directly involved in the conflict but there are sectors that are linked to economic interest for example and current political interest. What is happening on the streets in Guatemala is happening more strongly under the surface where there are ongoing threats and intimidations against those on the case and I mentioned other people working for positive change like land rights activists and indigenous activists. And so the genocide case has kind of thrust that all more into the people's eyes but its nothing new. And I think the judiciary enlisting the kind of division between the decisions between Judge Barrios and Judge Flores reflect that and then also reflect kind if the immense pressure the judges are under given a case of this magnitude. And the I'll just mention, listeners may not know that Judge Flores was actually, her decision was not only controversial but the attorney general of the country was concerned that it was in fact an illegal decision, Judge Flores is now being investigated by a UN backed body called the (NOT SURE) Anti-Impunity Commission, she's been denounced by the director of the International Commission of Jurists in Central America and so its seemed that there is still enough pressure on those involved in the judiciary that they pushed into making decisions that don't fit into the rule of law and that is a direct reflection of I think of the immense momentum and power of those sectors to ensure impunity remains.

Kara: I think we've lose Emi and we've lost Nic so we're going to get Emi back in here, I'm going to dial her up right now. Why don't you get back to the judges? Because there's a lot of, I mean you've kind of touched on that a little bit. But might be good to talk to Emi as well, if she's around. Might be able to get Nic too. You think we may have lost her. So lets, Nic are you with us? He's ringing too. Yes, we've got Nic. Can you hear us Nic?

Nic: Hello again.

Kara: We were just actually about to get into some of the procedural areas which I know is one of your favorite things to talk about. If you want to talk about that.

 

Nic: Its sounds quite exciting at Texas at the moment.

Kara: You know, we get a little excitement here. You know, Kelsey, can you talk about the potential of there being a mistrial? And if there is a mistrial, would we have to go back to the trial as it was in November?

Kelsey: I think that question is still up in the air its been unclear from the ruling by both Judge Flores as well as the response from the constitutional court what exactly a mistrial would mean and as far as we've been able to understand there's a possibility that the trial began on March 19th would be annulled and the actual witness testimony and so forth would have to be repeated under a different judge or a different panel of judges. There are other thoughts that it could go back to November of 2011 which would in fact undo all of the indictment of Rios Montt himself. Then there's a possibility that is perhaps unlikely is that the case simply moves forward from the point it left off and there may be a few witnesses whose testimonies are not allowed because they testified in moments in which the defense council was not present which has been one of the complaints from the beginning is that when Rios Montt's lawyers switched the very first day of the trial the judge did not allow them to take time to review the case because she saw it as an obstruction of justice and ruled that the case should move forward and they are claiming that those testimonies from the time that Rios Montt was not in fact protected did not have legal council should be in fact annulled. So, I think its unclear.

The constitutional court has not given clear statements and therefore we're left with kind of this battle between the possible annulment by Judge Flores and the rulings by Judge Barrios which repeatedly by trial must move forward and she is really working to uphold the precedence... which says that these types of judicial obstacles that seek to delay the judicial process are in fact illegal or unconstitutional and that the judges have a right to move a trial forward if there are these types of illegal obstacles thrown in the path of the trial but at this point I think we are all just waiting to see what kind of rulings will come out but what happens tomorrow when the trial is back in session it is possible that it is delayed again but that remains to be seen how much will get annulled if anything and what that means for all the witnesses and for the actors of all the case.

Kara: Thanks Kelsey, I'm going to try to patch in Emi again. She was trying to call in. Hopefully, we can get. Have 15 minutes left in the show. We have a couple more questions left. Might be missing each other. Nic, do you want to go ahead? You had a couple of questions that when you dropped of you were on the point of asking.

Nic: Sure, I'm trying to think that a size of mistrial Rios Montt's main hope is to implicate the current president Otto Perez Molina. I think this will happen and is it possible that President Molina will never not be immune from prosecution.

Kelsey: Well, I think there's definitely a battle happening behind the scenes in Guatemala on the side of the defense and the current former military. There's been a lot of speculation about how much the current administration is willing to add in to the public realm and how much they really want to keep classified and never actually confront or let into the public realm for discussion. The issue of the president's own role during the conflict and particularly during 1982 and 1983 the period in which he was a commander in the Ixil region under Rios Montt and is totally over the last year starting with his campaign for election as president, he has admitted to the fact that yes he was stationed in Ixil and yes he did participate in some of these actions and more recently that he was Major Tito Arias and so slowly that information has been coming out.

There does seem to be a strategy by the defense that maybe the chain of command only got up so far to the regional commanders and did not reach all the way to the halls of power in Guatemala city and that strategy to implicate President Otto Perez Molina because he was the regional commander in the Ixil and of course he mentioned the witness who did mention President Molina by name. This isn't the first time that President Molina has been accused. There are actually two, well one case in particular, that names him, that has been shut down by the court so far since he has been president. He has also been implicated in acts of torture in later years in the early 1990s so this is definitely not the first time the President Perez Molina's name has come up when talking about these types of atrocities. I think only time will tell what happens. It depends on the verdict in this case and I think it depends on what victims and civil society organizations are interested in doing down the line when he no longer enjoys diplomatic immunity as he does as head of state. The evidence is definitely there to show his participation. The question is its really what Guatemalans are going to want to do as far as the cases that it presents to the courts.

Kara: You know, its also really interesting that we're talking now about Rios Montt because I remember reading something that Alan Nairn wrote, Alan Nairn was in a documentary I think it was a Danish documentary “Titular de Hoy” and he wrote a rather an indicting personal article it was published in Common Dreams about how a plug is being pulled on this case and the fact that his testimony led back to the current president, President Otto Molina. And I wonder what your thoughts were first. There's been a lot of opposing comments about it not really true and relevant and in the case of this trial. Then to a bigger point will this case, is the timing wrong on the case because we have, there are still close ties to the past if you look at the present?

Kelsey: I'm not sure that there ever would be a right time to do a case of this magnitude and I think that when the opportunity presented itself, the prosecutors and the lawyers had to take that opportunity and so I think that its important to perhaps not to second guess the timing of the trial but to say that no matter when these cases are brought to the court and the responsibility of the judicial system to carry forward and independent and transparent process and be able to hold people accountable for past crimes. I think its interesting and somehow ironic to prove that the case after 13 years that the case has its day in court under President Otto Perez Molina but ultimately hopefully that won't impact the final outcome of the case. As far as Alan Nairn's statement, I wanted to highlight some of the points that he made specifically regarding, in reference to the United States. One, he's off this story that often gets left out when being discussed in the US press is the deep working relationship that the US military and the US government had with the Guatemalan military both through millions and millions of dollars of funding and direct training to Guatemalan forces, support with intelligence gathering and the US we now know knew exactly what was going on, knew the extent of the massacres in the indigenous highlands, understood the Guatemalan military's plan to  issue, to simply eradicate any population they saw as threatening which included women, children, the elderly people that had no evidence linking them to any insurgency but it had Ixil Mayan living in a region the military identified as dangerous.

So I think its important to remember that the US Role was important, integral to the ability to carry out these operations, to carry out their campaign, and these acts of genocide. And Alan Nairn, does a great job reminding of those kind of tragic truths about US foreign policy in the US role and I think its important to remember that now because we're seeing US support in the region being increasingly militarized. We are seeing the US again provide military training this time under the guise of fighting organized crime. US marines were down in Guatemala to do narcotics interdictions in August of last year. The US now works closely with Guatemalan military to build up a military based in the border of Mexico. So timely reminders the Alan Nairn has given about the past US role I think its important to work to ensure that the US role in the region does not mimic the role of the past and that we are able to move past any type of kind of focus around military support and look to the judicial strengthening that can move Guatemala more to a kind of functioning democracy.

Kara: We have one last, we have saved the easiest question for last Kelsey.

Nic: I think an important point to make was that  Rios Montt went to the school in Benington, Georgia. My last question is why is this case happening now? There is a larger fear by the RIGHT that this trial would create a national emergency that could spiral the country into another era of conflict and chaos. Do you think this is possible and what do you think will be the end verdict either way? Could it create a national emergency, could it spiral the country into another era of civil conflict. Do  you believe that this is possible?

Kelsey: I think that that is an important point. There is a huge effort underway by the right wing and by current and former military to claim that this trial is harmful to Guatemala and their public statements and paid ads in the Guatemalan press are really seeking to instill fear into the population and its the same fear tactics that we saw in the 1980s and their claim is that justice processes threaten stability and they will bring upon the Guatemalan people the same types of violence that they saw in the past and that in fact is simply a threat. They are using the case to try and frighten people into dropping, to scare people into moving forward but in fact, as we've heard from so many national and international actors, justice is a necessary element of peace and the nation won't find reconciliation or rule of law and won't be able to surpass eras of conflict if they have a functioning justice system and this case and justice in this particular case can go a long way into ensuring that Guatemala is on a path to peace.

Kara: Thanks Kelsey. That sets it for our show. Sorry to cut you off. Thank you and Emi for being on the show. You've managed to shed some light on an incredibly difficult trial. We'll be tuning in for the rest of the week on what happens with that and for the audience members who missed the podcast, the entire interview will be on our show page and Friday we'll be having a show on storytelling for movement building. If you'd like to make any suggestions for our show or comments about our show, email us at info@hablaguate.com. For Mesa Publica, this is Kara Andrade from Texas.

Nic: I'm Nic Wirtz from Guatemala.

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