Sunday, April 20, 2014

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U.Va. Law Students Witness Genocide Trial of Former Guatemalan President

Second-year University of Virginia law students Kendra Wergin and Mariah Thompson traveled to Guatemala last week as part of a National Lawyers Guild delegation to observe the genocide trial of former Guatemalan president Gen. José Efraín Ríos Montt.

Wergin and Thompson were among nine lawyers and four law students in the delegation who witnessed Ríos Montt’s trial, and met with human rights activists, survivors, lawyers and government officials, including Guatemalan Attorney General Claudia Paz y Paz and the outgoing president of Guatemala’s Constitutional Court.

Ríos Montt was facing charges of genocide and crimes against humanity that allegedly took place during his rule in 1982-83.

“Everyone in Guatemala is waiting for decisions from the Constitutional Court that will decide the fate of this trial, and, in the eyes of many, the future of the country,” Wergin said.

Wergin wrote the following account of her trip and the delegation’s experience:

“Seeking Justice for Genocide in Guatemala: My Experiences with the National Lawyers Guild Delegation to the Genocide Trial of José Efraín Ríos Montt”

It’s 7 p.m. on Saturday, April 20, and I’ve just returned from a week in Guatemala City, where I was part of a delegation of lawyers observing the genocide trial of former president Ríos Montt, who took over Guatemala in a coup and ruled for about 18 months between 1982 and 1983. During that time, the Guatemalan army conducted a scorched-earth campaign against the many indigenous groups in the country, saying that they were part of the counterinsurgency that had put the country into a civil war (a war that didn’t end until 1996). An estimated 200,000 people died during the course of the 36-year war, but nearly 81 percent of the human rights violations reviewed by a U.N. truth commission occurred during 1981-83. This trial is the first of its kind; no other country in history has tried a former leader in its own courts for genocide committed against its own people.

[….]

To put this in context, Guatemala is the 27th country I’ve had the good fortune to visit. It isn’t the first politically unstable country I’ve spent time in (Venezuela, Colombia, Bosnia and Kosovo come to mind), but it is the poorest — at least based on what I saw in Guatemala City. The travel books I consulted prior to the trip make an effort to manage expectations; consider the following opening description from the Rough Guide to Central America: “Guatemala City is now the largest city in Central America, home to over three million people. Characterized by an intensity and vibrancy that simultaneously fascinate and horrify, Guatemala’s capital is a shapeless and swelling metropolitan mass ... Not even a wild imagination will be able to make it out as a pleasant environment indeed, for many travelers time spent in the capital is an exercise in damage limitation.” Most of the city that I saw (and it is perhaps important to note that I saw only a very small portion of a pretty large spread) looked entirely run down and reflected the violence permeating both Guatemala City and the rest of the country; I’ve never seen so much barbed wire before (on rooftops, around doors, around windows). There’s also hardly any greenery, and the air is so polluted that the sky remains gray and the mountains around the city are practically invisible on the horizon behind all the hazy air. Cars, trucks and buses clog the streets and make driving with the windows down very ill-advised unless you’re attempting to strengthen your lungs’ tolerance for carbon dioxide, smoke and dust. It’s a visually exhausting and depressing city. Then of course, as is common in many developing countries, you can’t drink the water, so even the most basic routines like brushing your teeth require additional effort. I mentioned Kosovo above; Pristinë (the capital of Kosovo) is much more comfortable than Guatemala City. Even if you haven’t been to Pristinë, that should give you an idea of how disheartening Guatemala City is.

I mention none of this to complain; it is part of (and indeed, the point of) traveling to experience life as others do and, for those of us from the U.S. or other countries of relative economic and political stability, to appreciate what we have. I include this description as a means of providing additional context for this trial and illustrating the many struggles that exist in Guatemala. [….]

One of the things that most impacted me this week was the constant repetition of gratitude from the Guatemalans with whom we met, whether they were lawyers, judges, human rights activists, journalists or survivors of the genocide. (And there is no doubt in my mind that “genocide” is the appropriate term for what happened in Guatemala.) I think for many of us this was the first time we found ourselves in a situation where we were truly meant to observe rather than act. We had all gone to law school to advocate, to be active participants in shaping our country’s legal, social and political future. Whenever we asked, “What else can we do to help you?” the answer was always, “It is so important just that you are here.” Guatemala and the rest of the countries in Central America are consistently ignored by most Americans despite their proximity to our country and our government’s history of active (and often negative) involvement in their internal affairs. [….] It is thus crucially important that all of us who observed the trial and the corresponding political frenzy this week share what we saw with everyone we can at home. As I said on a radio show on Thursday, we all have a responsibility to prevent genocide, crimes against humanity and other violations of human rights — regardless of where we live or what work we do. (And for genocide specifically, the Genocide Convention actually obligates countries to intervene when genocide is suspected — an obligation which sadly has been grievously under-implemented.) I couldn’t put on my suit jacket and join the prosecution team in court or help to protect any of the lawyers, judges, witnesses or other activists, but I can write about what I saw to raise awareness and, hopefully, make people care.

In a nutshell, here’s what we saw during our five days of trial observations and meetings: a highly polarized battle for justice in the face of overt political opposition and danger.

I arrived on Sunday to [see] a 20-page supplement in one of the newspapers denying that genocide ever took place. The current president of Guatemala, Otto Pérez Molina, went on to officially support this view later in the week despite having been implicated for genocide himself during witness testimony last week. He has also stated concern that this trial will endanger the peace in the country.

At this point two things are worth pointing out: First, the tensions highlighted by the trial are not the result of the trial but rather reflections of the many problems lingering from the civil war. A society does not recover quickly from a 36-year civil war, especially one involving genocide. The trial may provide more reason to bring these tensions to the forefront of daily media coverage, but it’s certainly not a cause of the underlying struggles for rights and recognition. Second, it appears that many members of the general public reject the idea that genocide did not take place in Guatemala during the early 1980s. I saw numerous graffiti pieces saying “justicia genocidio” (justice for genocide) or “sí hubo genocidio” (yes there was genocide), and on Thursday night when we were among the audience of at least 300 people at a documentary film premiere, I witnessed the majority of the audience start to chant “ge-no-ci-dio” after the Minister of Culture, while welcoming the crowd, said the current president’s name. This chanting lasted for at least a full minute and briefly recurred when Ríos Montt himself appeared in the film.

The courts have proved a very complicated arena for fighting this battle for the right to determine history. I am still trying to understand the system of many different courts that have made various contributions to the progress of this trial. Guatemalan law provides for amparos, appeals made in-the-moment rather than after judgment and sentencing (as it works here in the U.S.). Three judges sit on the actual trial bench, and a different judge or set of judges will make the decision for each amparo. From my perspective, it’s very much a “too many cooks spoil the broth” type of situation, particularly in a country not known for its rule of law or lack of corruption. This week we got to observe directly how the presiding trial judge, Jasmin Barrios, handled the actual trial, and we joined the rest of the public in attempting to understand the decisions of judges in other courts and how those decisions would impact the trial’s progress.

Jasmin Barrios is, quite simply, one of the most inspiring people I’ve ever had the privilege to see in action. My incomplete knowledge of Spanish combined with the imperfect sound system limited my understanding of her, but I always understood her attitude: her professionalism, strength and commitment to a fair trial shone through in everything she said and did. Despite ridiculous antics by the defense lawyers, who seemed bent on delaying the proceedings and creating opportunities for appeal rather than actually presenting a case, Judge Barrios remained calm and patient (though still very forceful) in moderating the proceedings. This is a woman who accepts no nonsense in her courtroom.

On Thursday, while I was part of a small group meeting with the former president of the Constitutional Court (the country’s highest court and one of the bodies making decisions impacting the trial), we heard the news that another judge, Carol Patricia Flores, had annulled the trial because of what she apparently perceived as procedural errors and based on her reading of a recent decision by the Constitutional Court. Many have disagreed with this reading as an illegal or at least overbroad interpretation of the Constitutional Court’s decision; the former president of the court said as much to us and to a reporter while we were with him. An annulment would erase everything that had happened with this trial since November 2011 (including all of the prior procedural work; the trial itself didn’t begin until March 19 of this year) and would obviously be a tremendous step backwards, on numerous levels. The attorney general, Claudia Paz y Paz (with whom we met on Wednesday afternoon), issued a statement late Thursday evening calling the annulment illegal and promising that they would appeal the decision with all due force.

We entered a packed courtroom on Friday morning anxious to see how Judge Barrios would react to the decision of Judge Flores. On top of the annulment decision, she also had to deal with the fact that the defense counsel had walked out of court the previous morning in protest, leaving Ríos Montt and his co-defendant, José Mauricio Rodríguez Sánchez, without lawyers — a constitutional right that exists even in the troubled judicial system of Guatemala. Protesters of the annulment decision had spent the night in front of the courthouse and left signs, banners, flowers, and lit and melted votive candles as symbols of their opposition to this obstruction of justice. One handwritten sign read “You’re killing my Guatemala with all of this impunity.” A large printed banner said “They raped them” over and over again, finally ending with “This is also genocide.” (Rape is one of the central acts at issue in this trial, along with killing and forcible displacement.)

It was in this context that Judge Barrios marched into court on Friday morning and read a decision in which she rejected the annulment as illegal and non-binding on her court. For once, I understood everything she said, and thus I was able to join the rest of the breathless audience (comprised of many survivors along with other observers and even some foreign ambassadors) in applauding immediately when she read that sentence. She then proceeded to accept the prosecution’s motion to assign public defenders for the two defendants given that their lawyers still had not appeared in court (and I believe she may also have accepted a motion to penalize the lawyers for abandoning their clients, a violation of their professional responsibility). When she adjourned court 10 minutes later, she received a standing ovation and took about a minute to stand still and acknowledge the applause, finally saying something like “I thank you for your confidence in our impartial judicial system” before walking out of the room. It was, without a doubt, one of the most incredible — and brave — things I’ve ever witnessed.

Speaking of brave, I have to take a few moments to discuss the tremendous courage that Judge Barrios and many others exhibit on a daily basis in the face of so much public pressure and very real threats against their well-being. One of our hosts, a prominent human rights activist, was himself a target of government threats during the 1980s; he spent seven years in exile after several attempts on his life (including a bomb placed in his car). He told us on Thursday and Friday that he is anxious to find some way to leave the country again, at least for a little while, because he feels increasingly unsafe. He said that he has accepted the risk inherent in his work (although of course that doesn’t make for any additional peace of mind). To make this even more real, he took us to the Historical Archives of the National Police on Friday after the trial, and we saw his ficha (the index card summarizing his police file) on display, indicating that the police had closely followed his movements during the early 80s, before he fled the country. When he says he doesn’t feel safe, he means it — he knows the signs all too well from prior experience. We’ve also heard that some human rights organizations are planning to close temporarily whenever the trial is finally complete. Activists know that they are pushing their safety to the limits right now and will need some time for things to cool down.

[….]

You can also appreciate why, based on everything I’ve described above, it is so significant that this trial is even happening. Nearly all other genocide trials have taken place in international courts like the International Criminal Tribunals for the former Yugoslavia and Rwanda or the hybrid international-domestic tribunals like the Special Court for Sierra Leone. (Rwanda has also conducted domestic proceedings for genocide, but these did not include prosecutions of those at such a high level of government. The only other genocide trials I am aware of have taken place in German and Israeli courts, and again not for high-ranking officials and also not for their own nationals. For those of you wondering about the Holocaust, the Genocide Convention — which defined the crime of genocide — was not adopted until 1948, hence the trials at Nuremberg and Tokyo did not officially cover genocide as such.)

I know from the extensive research I’ve done this year that proving genocide is incredibly complicated; despite the many resources of the ICTY, the tribunal has only convicted a handful of those whom it has charged with genocide in Bosnia. It is a massive judicial undertaking in any circumstance and is even more challenging and risky in the context of the current state of politics and power in Guatemala and in the Guatemalan judicial system. A genocide trial requires enormous amounts of evidence and also significant attention to the security of those involved in the trial, including witnesses. We know that there are NGOs like the International Peace Brigades working in Guatemala to help protect some people, and we heard from a representative at the U.S. Embassy that the U.S. is helping to coordinate additional protection. What we don’t know is what will happen to these protected people when the trial finishes — the threat certainly will not disappear, but the will and resources to protect them indefinitely may well do exactly that.

I’ll close with a reflection on our meeting with eight survivors. These brave men and women shared their perspectives and experiences with us, and anything less than a complete transcript of the two-hour meeting cannot do justice to the power of their words. Nonetheless, here are some quotes that struck me. One man spoke about how “the Bible says that we are made in the image of God ... so killing another human being, let alone an entire group, is an incredible crime.” Another said, “What Ríos Montt did to us gives me pain every day,” but all agreed that “We aren’t seeking vengeance. We want this process to help the entire country move forward, so that people understand what happened to us and nothing like this ever happens again.” Finally, one survivor described them not as “sobrevivientes” (the word for “survivors”) but as “supervivientes,” kind of a super-survivor. To survive, in a purely physical sense, as they have is already impressive given the circumstances, but to have the courage to speak in court and advocate elsewhere for the justice they deserve requires a level of courage rarely witnessed.

None of us, Americans or Guatemalans, really have any idea how this trial will ultimately end or how it will impact the country. Many of us do agree on one thing, despite the vastly different circumstances in which we’ve grown up and live today: Justice must be done. I lack the words to express exactly how much I respect and admire the many amazing people I met this week who are risking so much for this important cause. The discomfort I now feel, several hours into being back home, is a testament to the deep connections I’ve formed with people this week and to the impact of this experience on me, as a future lawyer and as a human being. I hope that one day soon I will be able to leverage my privileges and gather my courage to help in this and other crucial fights for justice.

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