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25/04/2014 | Guatemala - The War of Paz y Paz: The Victims

Steven Dudley

Since taking over in 2010, Guatemala's Attorney General Claudia Paz y Paz has waged a revolutionary war from inside one of the country's most troubled institutions. She has submitted her name for another four-year term that would begin in May, but her enemies are strong and want to return to the status quo. The second part of this three-part investigation explores how her attempts to prosecute former General Efrain Rios Montt for genocide have solidified opposition against her.


From the beginning of her term, Paz y Paz has always said she will advocate for the victims. In this respect, Paz y Paz sees two major categories: women and victims from the civil war (1960-1996).

Statistically, Guatemala is one of the worst places in the world to be a woman. A 2012 report by the Small Arms Survey said the country had the third highest rate of femicides on the planet (pdf). Human trafficking, often of foreign women, is also common in Guatemala. The State Department has designated the country as "Tier 2" for the crime (pdf), citing its significant role in "sex trafficking and forced labor."

To deal with these startling realities, in 2010 the government created a special court (pdf) to try femicides and other violent crimes against women. In 2012, the Interior Ministry and the Attorney General's Office, or Ministerio Publico (MP), created a joint task force for crimes against women (pdf). The MP then streamlined the process, making it easier for women to get access to the entire justice chain. If a woman is being abused, for example, she goes to one single office where she will find a prosecutor, a forensic specialist, a social worker and a psychologist. The government also established a special 24-hour court to attend to cases of femicide.

On the investigative side, the MP began to separate sexual abuse cases. On one side, they placed the cases where the victims knew the assailants and on the other, those where they did not. While seemingly obvious, this was something novel for Guatemalan investigators. They also started using DNA evidence on a more regular basis. DNA had been available for years previously, but under the current government, the time it takes to process DNA has gone from between four to seven months to just two days in some cases. The new tactics recently helped the joint task force break open a case of assailants who both robbed and raped many of their victims.

The forensic approach is a critical turn in Guatemalan justice. In the past, most cases were solved using eyewitness testimony. This is a notoriously unreliable way to prosecute criminals, not least because eyewitnesses are easily coerced and can be manipulated, especially in a place like Guatemala. What's more, the government has yet to create a reliable witness protection program. Forensics, as Paz y Paz has found, is also an incredibly powerful political tool. In Guatemala, everything is a conspiracy until proven otherwise. And this ethos often plays into how crimes are planned and committed (See the Rosenberg case in Part I – The Revolution). Military intelligence personnel, both former and active, are also specialists in manipulating crime scenes and concocting witnesses. Such was the case with the murder of Bishop Juan Gerardi.

Gerardi headed up a team of investigators at the Archbishop's Office, of whom Paz y Paz was a member in the early 1990s. In 1998, the team produced the Recuperation of Historical Memory, or REMHI, report, which set off a battle for control of the narrative about the war that continues to this day. The report chronicled in chilling detail the means by which the army's intelligence apparatus targeted a large sector of the population it deemed the enemy for systematic surveillance, persecution, torture and often execution. It also reframed Guatemala's history, putting economic elites at the center of the country's problems, blaming them for setting the stage for war, and accusing them of forming alliances with the military to "violently destroy" opposition. Finally, it said the military's actions in some instances had "genocidal characteristics," and blamed the military for 90 percent of the human rights abuses during the war.

Gerardi was assassinated two days after the REMHI report's launch. His assassination was first pinned on a fictional star-crossed lover and a dog. Authorities later convicted two members of the military intelligence services, one of whom still plays a strong role in Guatemala's underworld operating from jail.

The development and professionalization of the forensics side of the MP has allowed Paz y Paz to end the speculation swirling around certain cases and restore some confidence in the justice system as a whole. Not everything, it seems, is someone's devious plan to screw over a political rival or silence an enemy. It has also perhaps slowed the use of "fabricated" cases, which can tip the balance of power in this country.

Given its newfound importance, the forensics lab, known by its Spanish acronym INACIF, has become almost as important to control as the MP itself, and battles for that control have involved the highest echelons of power. Suddenly, it seems, the elite -- be they economic, political or military in origin -- can no longer construct the narrative that suits their interests, and that terrifies them.

"The political system has oil," one of Paz y Paz's longtime team members explained to InSight Crime. "And that oil is called impunity. And when that oil goes dry, then the engine fails."

The focus on the victims further pushes the pendulum in this direction. It was a twist for a judicial system that has traditionally protected the interests of the wealthy and the powerful. And it is a position that has, to the surprise of no one, gotten Paz y Paz into political hot water that threatens to end her institutional revolution prematurely. Nowhere is this clearer than in the cases involving her second major category of victims: those who suffered during the war.

Paz y Paz insists it was not her idea to push these cases against former military officers, and she is quick to point out that she was not the first to bring cases to trial. Indeed, most of the cases that have been brought under Paz y Paz's direction had begun under previous attorneys general, and several of them had concluded before she started at the MP.

What's more, certain events opened the way for the cases to be revived, she argues. To begin with, in a decision in 2007, the Constitutional Court declared that cases of forced disappearances had no statute of limitations (pdf). In 2011, the Colom government opened 94 percent of the military archives from the conflict to investigators. The government also opened old police archives. Both archives are the type of internal documents investigators needed in order to show a certain "intentionality" and systemized form of repression.

"We always saw this through the victims," Paz y Paz told InSight Crime. "And the archive, what it shows us is what happened from the perspective of the perpetrator."

For its part, the Inter-American Human Rights Court began forcing the state to rule on these cases, thereby halting the former military officers' long-time legal tactic of filing an injunction -- or what is known as an "amparo" in Guatemala -- against their prosecution. As a recent International Crisis Group report details (pdf), the amparo is a sacred legal tool in Guatemala, but it has been used at every turn of a case to delay and entangle judicial processes, especially cases involving former military personnel and accused drug traffickers. There is no limit to the number of amparos one can file, and judges, instead of throwing them out immediately, will often hear the arguments and willingly delay the processes.

Paz y Paz had strong connections to the cases before she worked at the MP, which seemed to influence her own actions once she was in power. In addition to her work as an investigator for REHMI, Paz y Paz had also worked with Inter-American Human Rights Court on the Dos Erres case, which led to the 2011 conviction of four former military personnel to over 6,000 years combined in prison sentences.

Paz y Paz's interest in these cases was beyond professional. Her aunt, her aunt's husband, and three cousins from the same family worked in different capacities in the Guerrilla Army of the Poor (Ejercito Guerrillero de los Pobres - EGP), a rebel group that was founded by a lawyer and became formidable in the northwest. Paz y Paz, who is intensely private, does not speak publicly about her family, and she has never been connected to the group in any way. But when she became attorney general, human rights groups saw their opening and lobbied for the resumption of the trials, especially one that accused General Efrain Rios Montt and his military intelligence chief at the time, Jose Mauricio Rodriguez Sanchez, of genocide.

The case against former General Rios Montt carried with it an incredible amount of emotional, historical and political baggage. While the Guatemalan government had signed a peace accord with the various rebel factions in 1996, the peace process was only partially implemented and the ideological divide between the sides never bridged. A Constitutional Referendum in 1999, which was designed to put into practice the accords, failed amidst widespread apathy, abstention and political disinterest. Unlike in El Salvador, where the guerrilla umbrella organization formed a strong political party and has, as of mid-March, won two consecutive presidential elections, the Guatemalan rebel coalition fractured, then disintegrated.

There were some victories for the rebels and more progressive parts of Guatemalan society. The military was reduced to a third of its former size, and the old police force disbanded. In the years that followed, however, these seemingly positive steps led to more problems. Much of the former military intelligence personnel became part of the underworld and corrupt practices came to characterize the country's political and economic class. Land disputes persisted, as land tenure continued virtually unchanged. Crime rose exponentially as an entire generation, many of whom were displaced by war, struggled to adjust to their new, more urban surroundings.

The post-war battle lines have been drawn around who gets to write the history of the conflict itself. In this respect, one of the few lasting parts of the accord (pdf) was the follow up report written by the Historical Clarification Commission (Comision para el Esclarecimiento Historico -- CEH). Unlike the REHMI report, the United Nations-led commission did not have the mandate to name names. But it did chronicle thousands of abuses, tortures, extrajudicial executions, disappearances and other barbarous acts during the war, 93 percent of which it attributed to the state.

Even more damning was the CEH's qualification of these atrocities as "acts of genocide" against Mayan peoples. As the commission wrote: "The violence was fundamentally directed by the State against the excluded, the poor and above all, the Mayan people, as well as against those who fought for justice and greater social equality."

These three words -- "acts of genocide" -- would help form the core of the case against Rios Montt. A law following the peace accord stated that former security forces and guerrillas could be prosecuted for "genocide, torture, and forced disappearances," as well as violations "stipulated in international treaties ratified by Guatemala." While the law opened the way for prosecutors to go for the genocide conviction, it also opened a way to take a slightly less radical position of possibly prosecuting the general for massive human rights violations or simply crimes against humanity.

The implications were not just semantic. Genocide, as cases concerning Nazi Germany, and later Rwanda, showed, could be used as a means to prosecute not just perpetrators of crimes but their accomplices as well. For Guatemala, this meant the country's elites -- who had participated actively in the Rios Montt government in 1982 to 1983, when the "acts of genocide" had allegedly occurred -- could be investigated and possibly prosecuted as well.

Some of these elites had formed part of Rios Montt's ruling council. Others had provided financial and logistical support for the army. Plaza Publica later chronicled these connections in detail in an article that resembled an indictment as much as it did an investigative report. (The article appeared after the trial was over, but at least one prominent businessman told InSight Crime that he believed the author, former Plaza Publica editor Martin Rodriguez, had gotten his information from the MP. He said this was proof that the MP believed the elites were next on the list of accused.)

"This wasn't a trial of a general," former Interior Minister Carlos Menocal told InSight Crime. "It was a trial of a system of a country, whose traditional sectors, economic powers, backed it, funded it."

Conviction, Absolution and Confusion

Inside the MP, the strategy to go after Rios Montt for genocide generated a lot of discomfort amongst the tightly knit Paz y Paz team, and some of them tried to dissuade the attorney general from pushing the case forward under this controversial pretense. In internal discussions, some argued that "acts of genocide" was the UN's way of keeping the case a step away from the Rwanda and Germany cases. Massive human rights violations were enough to send the message that justice had been done, they said. But Paz y Paz said that "acts of genocide" and "genocide" represented the same thing, and she pointed to Guatemala's own legal code as reinforcement for her argument.

"I don't know why the commission put 'acts of genocide,' but I can imagine that amongst the legal scholars there was a discussion of whether they wanted to exterminate all or, at one point and at one moment in time, a part [of them]," she explained to InSight Crime. "But (Guatemalan) law says 'in part or all' is the same as 'acts.'"

At first, the strategy seemed to work. The trial itself -- which began in March 2013 -- was fairly one-sided, according to an account by the International Crisis Group (pdf). The MP presented dozens of witnesses, including numerous victims, who recounted their personal tragedies in horrific detail. Paz y Paz also used DNA and ballistics evidence, as well as drawing from expert testimonies from forensic anthropologists, among others. The defense, meanwhile, presented just nine witnesses, and barely contradicted the central assertion of the prosecutors' case: that the army intentionally destroyed entire indigenous villages.

However, the publicity campaign to thwart the process was already underway. With genocide on the table, the country's traditional elite allied themselves with former military members in an effort to thwart any possible guilty verdict. In mid-April, halfway through public hearings, a moderate group of political and intellectual elites emitted a paid advertisement (pdf) outlining the potential implications of a "genocide" conviction on legal, social and political levels. The ad was signed by two former vice presidents, including Eduardo Stein, and six ex-cabinet ministers.

"The accusation of genocide against former officials of the Guatemalan army constitutes an accusation not only against those officials or against the army, but against the Guatemalan State in its entirety," they wrote. "[It] has dangerous implications for our country, including worsening the social and political polarization, and reversing gains already made by the peace agreements."

What's more, the prosecution had its hiccups, including the dramatic testimony of a former soldier who claimed to have seen President Otto Perez Molina (when he was a colonel in the army) at the sight of a massacre. Paz y Paz and her team insist that the witness did not say this during pre-trial preparations and that they were just as caught off guard as the rest of the country. The president, of course, was furious, and vehemently denied the account.

"That is a false testimony that does not correspond to the reality of what happened," the president told InSight Crime in written statement.

More important, from a legal perspective, was the April 19 decision by Judge Iris Yassmin Barrios -- who was presiding over the three-judge "high impact" court panel deciding the case -- to continue the trial even after the abrupt departure of Rios Montt's lawyers from the courthouse in protest of one of Barrios' procedural decisions.

Barrios herself had been through the wars. She had faced down threats when she presided over the Bishop Gerardi murder case, including surviving a grenade exploding on her patio. What seemed like a technicality at the time -- especially considering the oft-used tactic of stalling these processes via amparos, last minute changes and resignations of legal teams -- would become the centerpiece of an appeal.

On May 10, the three-judge court found Rios Montt guilty and sentenced him to 50 years in prison for genocide and another 30 for crimes against humanity; it acquitted his intelligence chief of both charges. While the country exploded into an emotionally and politically-charged game of mutual recrimination, Paz y Paz was stoic. Justice was done, she reportedly remarked.

Rios Montt, however, spent just two nights in jail and then was released while the case was appealed. Ten days after the initial guilty verdict, the Constitutional Court overturned the historic decision, declaring what was effectively a mistrial from the moment Barrios had continued proceedings on April 19 following the departure of Rios Montt's legal team. Prospects of a return to court seem slim. The three judges have recused themselves. Many of the witnesses are back in their villages.

Paz y Paz's core team was devastated. The interpretation from various corners is that the MP pushed too hard for genocide. But when pressed about her strategy, Paz y Paz remained steadfast, returning to one of the pillars of her philosophy.

"There is a human part to this," she told InSight Crime. "I think that it's very important that the women, above all the survivors -- male survivors but female survivors also -- overcame who knows how many obstacles to travel from there to here, the palace of justice, the most important space for justice where the supreme court sits and where they were having this trial, and they said to the perpetrator, 'You did this and that to me.' They even narrated sexual violence. I think this was something very, very socially significant. And they did it in their language."

International Recognition, Internal Spite

The Rios Montt case brought more international fame to Paz y Paz. She had already been named in 2012 by a Forbes columnist as one of the "5 Most Powerful Women Changing the World in Politics and Public Policy." Following the genocide trial, she was profiled in numerous international media. She won several awards and was nominated for the Nobel Peace Prize. And she was invited to speak all over the world. (Judge Barrios also won praise, including from the US government, which bestowed a "Woman of Courage" award to her this year in the presence of First Lady Michelle Obama.)

Ironically, within Guatemala, the case may have sealed Paz y Paz's fate at the MP. In February, a businessman and lawyer, Ricardo Sagastume, who fittingly used to head the bar association and had once run for president for a political party founded by an ex-army member, filed an amparo to the Constitutional Court. In it, he argued that Congress had not opened up the attorney general selection process to all candidates in "due time," which by his count was May of this year, six months short of the four years mandated by the constitution. For legal experts, the amparo seemed frivolous, irresponsible even. But logic seems to take a backseat to power in Guatemala's judicial system.

For Paz y Paz, it only got worse. In the lead up to the Constitutional Court's decision on Sagastume's amparo, Contrapoder magazine published excerpts of a book in which Paz y Paz was asked to name those "who were protecting impunity." In a rare slip, she named AVEMILGUA, a right-wing group of former military officers and CACIF, the country's most powerful business association. She also cited the famous paid advertisement signed by the ex-vice presidents and former cabinet members as proof of who they were and how they were connected to traditional political power brokers. The statements reinforced what her enemies had been saying about her: she had taken her "leftist" political agenda to the MP.

Five days later, the Constitutional Court, citing a technicality, said Paz y Paz's term should end in May, not December as constitutionally mandated. The decision was unanimous. 

The court's decision was widely criticized. Human Rights groups inside and outside of Guatemala slammed the decision. In a letter (pdf), the European Parliament called the court's decision "arbitrary" and said it "threatens the rule of law." US Ambassador Arnold Chacon said in a statement (pdf) the US Embassy was studying the ruling.

"It's a privilege for my government to have a partner like Dr. Paz y Paz," he added.

The decision also set off a scramble for the attorney general's position, which will be filled in May. A number of candidates immediately submitted their names. And after contemplating leaving government, Paz y Paz decided to try for a second term.

This article is part of a series on Guatemala's Justice System. See whole series here. (Estados Unidos)


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