A Test of Justice. in Guatemala. The Myrna Mack Murder Trial

A T est of Justice

in Guatemala

The Myrna Mack Murder Trial

PREFACE An extraordinary trial took place in Guatemala in September and October 2002 for the 1990 murder Myrna Mack, an anthropologist who exposed atrocities committed against Mayan communities during Guatemala’s 36-year civil war. It was the first time that senior military officials were brought to trial for war-time rights violations. The three were commanders of the Presidential General Staff—a front for death squad activity. The trial was a test for Guatemalan justice. A Test of Justice in Guatemala: The Myrna Mack Murder Trial assesses the extent to which justice was done in the trial. It summarizes the legal history of the case and the nature of Guatemalan criminal trials, recounts risks facing those pursuing justice for rights violations, chronicles the often surprising developments in the trial itself, and paints a vivid picture of the atmosphere inside and outside the courtroom in a case that dominated national headlines and attracted extensive international attention. It analyzes the verdict, and sets out recommendations for ensuring that justice is done in this case and others like it. The Lawyers Committee for Human Rights has long been involved in the case. We have supported Helen Mack, a well-known Guatemalan rights defender, in her efforts to bring her sister’s killers to justice for over a decade. We petitioned the Inter-American Commission on Human Rights to find Guatemala responsible for years of denial of justice and to press the Guatemalan authorities to advance the prosecution.1 When the trial of those charged with orchestrating the crime was finally scheduled for September 2002, after unacceptable delay and countless irregularities, the Lawyers Committee sent representatives to Guatemala City to see first hand the extent to which justice was served, and to report on and denounce intensifying threats against those pressing the case and other human rights defenders. A Test of Justice in Guatemala shows that the pursuit of justice in Guatemala is an uphill battle and still extracts an unacceptably high cost. The prosecution was hampered by many years of attempts to subvert the investigation, including the murder of police investigator Jose Mérida Escobar in 1991, after implicating the presidential security unit. Those involved in the case, including the victim’s family and their representatives, remained at risk throughout the trial. Tension caused by the threats, attacks, and various forms of intimidation that have been directed at those seeking justice in this case was more than evident. Still, the unprecedented conviction of one of the three defendants represents a challenge to the pervasive impunity that has prevented justice for countless other rights violations. In addition, the wide-ranging testimony in the trial itself painted a stark picture, seldom debated in Guatemala, of the philosophy and modus operandi of a state apparatus that for decades routinely targeted and killed its own citizens.

1

Helen Mack and the Inter-American Commission took the matter to the Inter-American Court of Human Rights, which heard the case against Guatemala in February 2003.

-1-

I. EXECUTIVE SUMMARY On September 3, 2002, three army officers went on trial in Guatemala City for ordering and orchestrating the 1990 murder of Myrna Mack Chang, an anthropologist who documented abuses by security forces against rural indigenous people during Guatemala’s civil war. One month later, in a split decision by the three-judge civilian panel of the Third Trial Court for Criminal Matters, Drug- and Environmentally-Related Crime (hereafter, “the court”), Colonel Juan Valencia Osorio was found guilty of murder. His two colleagues were acquitted. These were the first senior military officials to go to trial for human rights abuses committed during that country’s 36-year civil war, which ended in 1996. The conviction of Colonel Valencia Osorio is under appeal, as are the acquittals of his fellow officers. Years earlier, in 1993, then-Sergeant Noel de Jesus Beteta Álvarez had been convicted of fatally stabbing Myrna Mack. Beteta Álvarez was assigned to the Presidential General Staff (Estado Mayor Presidencial, EMP), a top-level army unit over which the three accused officers exercised command. But the fight to bring to justice those accused of ordering and planning the murder proved to be difficult and dangerous. A detective was killed and witnesses were forced into exile. Numerous documents that might have further implicated the defendants were withheld, lost, or destroyed. Helen Mack, the victim’s sister, who has made it her main goal since the murder to bring those responsible to justice, has been routinely threatened. The 2002 trial was a test of the capacity of the Guatemalan criminal justice system to function effectively and evenhandedly in an environment which remains hostile and dangerous to judges, prosecutors, witnesses, and complainants pursuing cases against defendants from the armed forces, even for crimes committed long after the end of the civil war. Guatemala’s justice system continues to be tested by this case as it is now before the appeal courts. The present report outlines the legal and political background to the Mack case, explains its history and importance to Guatemala and assesses the extent to which justice was served during the one-month trial that ended on October 3, 2002. It is based on the findings of staff of the Lawyers Committee for Human Rights who were in Guatemala during the trial itself, and on our experience as petitioner on behalf of the Mack family in a parallel case against Guatemala before the Inter-American Court of Human Rights. It summarizes Guatemalan and international legal standards regarding fair trial and assesses the extent to which internationally protected rights of both the aggrieved persons—the victim’s family in this case—and the accused were observed. It assesses the lead-up to the trial as well as the trial itself and the verdict. It also briefly describes the polarized political context in which the trial took place and reviews key aspects of the proceedings, including the prosecution’s case and the defense strategy. The report finds that the court presided over the trial impartially throughout, and dispensed justice in a competent and credible fashion. However, at best, justice was only partly done as the prosecution was obstructed well before the trial began. Justice was denied in the case for many years—evidence was withheld or destroyed, an investigator

2

was murdered, and witnesses were intimidated, prejudicing the prosecution irreparably. The loss of access to official documentation emerged as a factor during the trial itself, when a certified copy of a key document suspiciously disappeared from the case file. In addition, many years of harassment faced by the Mack family and the staff of the Mack Foundation intensified as the trial approached, seriously disrupting their preparation for the prosecution. Very serious threats were made against Helen Mack in the months just prior to the trial, requiring her to leave the country for an extended period precisely at the time when the prosecution needed to prepare its courtroom strategy. Staff of the Mack Foundation were also subjected to intimidation. Upon Helen Mack’s return to Guatemala in the weeks before the case was due to be heard, the trial lawyer she retained was threatened and his house strafed with gunfire. Threats and intimidation against him and his family persisted throughout the trial, further disrupting the prosecution. Generally, although on the surface the trial was held in a calm, orderly, evenhanded fashion, the atmosphere of intimidation cast a pall over the proceedings that touched the prosecution, witnesses, and even the members of the court. To its credit, the court did not allow the evident pressure to prevent it from running the proceedings in a competent manner. However, the tension made it difficult for witnesses to speak freely, for prosecutors to examine and cross-examine confidently, and for the court itself to rule on the complex case without fear of reprisal. A more secure, less intimidating atmosphere would have provided more deliberative opportunity for the court, greater access to evidence and greater preparation time for the prosecution, and less of a chill on witness testimony. Whether or not such a trial would have led to a different result, the parties to the case and the Guatemalan public would have had a greater sense that a full, fair hearing had occurred. In spite of the intimidating atmosphere and the withholding of evidence, Helen Mack as the private accuser, and her team, as well as the public prosecution team, were able to expose the genesis and nature of entrenched state policy that led to the Mack murder, and to convict a senior army officer. In convicting Colonel Juan Valencia Osorio, a majority of the court rejected the defense argument that the EMP existed simply to protect the president. However, while the fact that the trial was held at all represents an important advance for justice in Guatemala, the disadvantages faced by the prosecution at trial due to previous delays and irregularities in the case, and the hostile environment in which the trial took place, demonstrate the limits of the justice system as a venue for seeking redress for human rights violations. Furthermore, the progress made in the case itself is far from consolidated as the verdict, at time of writing, remains under appeal.

3

II. INTRODUCTION AND BACKGROUND Myrna Mack was a renowned Guatemalan anthropologist who was stabbed to death as she left the office of the social science research institute AVANCSO (Association for the Advancement of Social Sciences in Guatemala) in Guatemala City on September 11, 1990. She had been targeted for murder by a military death squad in retaliation for her pioneering research on harm done to Guatemalan indigenous communities as a result of the military’s counterinsurgency strategy. On September 3, 2002, history was made when the highest-ranking military officials in Guatemala ever to face trial for human rights violations were brought before a Guatemalan criminal court. The present report evaluates this trial, which concluded on October 3, 2002. At least one Lawyers Committee for Human Rights representative was in attendance for all or part of each of the first fifteen days and the final five days of the 21-day trial, including the reading of the verdict. The primary purpose of the Lawyers Committee’s presence was to contribute a degree of public scrutiny to the trial, which occurred in an atmosphere of intimidation and violence against individuals and organizations associated with the case. This report is based in part on that observation, as well as on interviews with a public prosecutor on the case, Mack Foundation lawyers and staff, United Nations officials, and other observers. The report examines the trial and reviews the context in which it took place, concluding that the trial itself did provide an even-handed forum for diverse testimony on the motive for and method of Myrna Mack’s killing. It could not, however, repair the harm already done to the prosecution’s case by years of intimidation of investigators, witnesses, judges, and complainants. It was further marked by the denial of access to key evidence to which the prosecution was entitled. Furthermore, the Lawyers Committee found that the atmosphere of intimidation persisted and indeed intensified throughout the trial itself. Taken together, these factors left the impression of justice constrained. While the proceedings were conducted impartially and competently, a full and fair hearing was impossible. Although the fact that the trial and conviction occurred at all represents an advance in the struggle against impunity in Guatemala, the case that has become a symbol of that struggle is still under appeal and cannot yet be considered resolved. Furthermore, the dangers and obstacles faced by those pressing the case suggest that justice in countless other still unresolved human rights cases in Guatemala remains distant or unattainable. A. Myrna Mack Myrna Mack was an anthropologist with long experience in rural Guatemala, home to the poorest and most vulnerable sectors of society. Before entering San Carlos University in 1972 to begin her studies in social work, she spent several years in the countryside as a literacy teacher. She earned her Master’s Degree in Social Anthropology in England at the University of Durham and a postgraduate diploma at the University of Manchester before returning to Guatemala as a director of the widely respected regional news service Inforpress Centro America.

4

Myrna Mack came of age professionally when Guatemala’s social sciences field had dwindled and nearly disappeared. This decline was not accidental, as investigating and documenting the conditions in which Guatemalans lived would necessarily expose the vast social, economic, and political injustices that characterized Guatemalan life. In 1986, after Guatemala elected its first civilian government in nearly three decades, Myrna Mack and several colleagues founded the social science research institute AVANCSO in an attempt to reinvigorate these disciplines and explore the realities that had largely escaped academic study. This step required extraordinary courage. As commentator George Black wrote of Mack, her founding an institution dedicated to the social sciences, was, to the Guatemalan army, “a little like saying you belong to the Society for the Spread of International Communism.”2 As coordinator of research at AVANCSO, Myrna Mack was responsible for AVANCSO’s field work, which would inevitably expose her and her colleagues to the greatest danger. Mack was the first Guatemalan social scientist in decades to conduct field research.3 AVANCSO, and Myrna Mack in particular, developed close professional relationships with well known academic institutions and scholars. Several of AVANCSO’s projects, especially those that touched on the indigenous populations of Guatemala, were financed by U.S. institutions. Mack worked closely with the Ford Foundation, the Swedish International Development Authority, Georgetown University, the University of California at Berkeley, and the University of Texas at Austin. Her last published study, “Institutional Policy Toward Internally Displaced in Guatemala”, the result of a collaboration with Georgetown University in which she was the principal researcher, was published in English by Georgetown shortly before her death. Myrna Mack also presented her findings on the rural displaced in 1989 before the First International Conference on Central American Refugees, organized by the United Nations. Myrna Mack’s professional reputation was founded upon her extraordinary ability to describe with precision the conditions under which people lived. The testimonies that she collected are portraits of the repression and extreme deprivation endured by rural peasants. Her investigations shed particular light on the first-hand stories of internally displaced people, who typically do not receive refugee status because they remain within national boundaries, and consequently are deprived of refugee aid or the relative safety of another country. Uprooted by the military lest they provide food or shelter to rebel fighters, more than 200,000 displaced people spent years, essentially homeless, in Guatemala’s unforgiving mountain areas. Myrna Mack gave the displaced a voice by taking their testimonies, and through her publication in Guatemala and abroad, disseminated their stories, and the military’s part in their suffering, to an ever-wider international audience.

2

George Black, “A Hellish Life in ‘Democratic’ Guatemala” Los Angeles Times (November 11, 1990) “Slain Guatemalan Researcher Shrugged at Danger,” San Diego Union, October 21, 1990, citing Eduardo Gutierrez, AVANCSO co-founder who is now Guatemala’s foreign minister. 3

5

Refugee returns began on a small scale in 1986, with the creation of the Special Commission for Attention to Refugees, known in Guatemala by its Spanish acronym, CEAR. The military considered this to be a matter of national security, and its agents infiltrated the civilian offices ostensibly in charge of the negotiations and arrangements for repatriating Guatemalans who had fled to Mexico. By contrast, no such negotiations took place with regard to the internally displaced, still considered by the army as affiliates of the enemy by virtue of their remaining presence in the highlands where the guerrilla operated. However, in 1987 a small group of internally displaced persons, assisted by the Catholic Church, took the initiative of returning to their homes. By 1990, the existence and plight of large internally displaced populations began to come to public light, as the displaced began to demand that the government formally recognize their status as civilian non-combatants. On September 7 of that year, four days before the murder, the first paid advertisement on behalf of the displaced appeared in Guatemalan newspapers, relating in some detail the suffering of these populations at the hands of the army. As with the refugee issue, renewed attention to the matter of the displaced was immediately viewed by the army as a threat to national security, and potentially adverse to its interests. In addition to exposing the army’s hitherto largely hidden level of violence against rural populations, the emergence of the displaced groups at the outset of peace negotiations between the government and the rebels raised the stakes dramatically for the army, who wanted to avoid granting the displaced protected status or guaranteeing a prompt and secure return to their homes. At the time of her murder, Myrna Mack was working on a further study, this time concerning the very issue of resettling displaced persons. This was published posthumously, by AVANCSO, under the title, “Where is the Future? Processes of Reintegration in Communities of Returnees.” In the historical sweep of Guatemala’s internal conflict, Myrna Mack’s death came late. The bloodbath of the 1980s had begun to recede and rural Guatemala had been pacified, brutally. Urban intellectuals and activists had for the most part, been killed, exiled, driven underground or into inactivity. However, the violence was far from over and while becoming somewhat more selective, killings were still numerous. National and international response to the crime was overwhelming. In the weeks after, editorials and columns denounced the killing in the New York Times, Boston Globe, the Los Angeles Times, and the Christian Science Monitor. In Guatemala, dozens of paid advertisements appeared in the newspapers, from Christian organizations, grass roots groups, human rights NGOs, universities in Guatemala and across Central America and from Myrna’s professional colleagues in Europe and the United States. One published in Guatemala’s Prensa Libre (with a companion ad in the New York Times), carrying the signatures of some 500 U.S. academics, observed that Myrna Mack “represented the promise of social science in Guatemala.” Her murder was not merely one more killing among tens of thousands. She was targeted because she represented truth-telling, in

6

particular about the army’s rural campaigns, which were intended to encounter no opposition, leave no testimonies, and attract no international scrutiny.

B. The Mack Case in Context The killing of Myrna Mack occurred in the closing years of a decades-long internal armed confrontation that left over 200,000 dead or “disappeared”. A 1999 report by the Historical Clarification Commission, the truth commission created under a 1994 peace accord4, found that state institutions including Guatemala’s armed forces resorted to violence and terror during the conflict in order to maintain social control.5 An illegal and underground punitive system was established, managed, and directed by military intelligence, that identified opponents, whether or not they were combatants, as legitimate military targets under an increasingly inclusive category of “internal enemy.”6 State forces and related paramilitary groups were responsible for over 90 percent of the tens of thousands of rights violations that occurred during the conflict including massacres, arbitrary executions, and forced “disappearances” of unarmed civilians. As Myrna Mack’s research helped document, most of the victims were indigenous people in rural Guatemala. Nonetheless the sophisticated repressive apparatus touched men, women, and children of all social strata, including urban professionals like Myrna Mack. The control exercised by Guatemala’s armed forces weakened and compromised state institutions, ensuring impunity for violations of human rights. Effective military control persisted through the transition to civilian rule in the mid-1980s. So complete was military control over the judiciary that it utterly failed in its duty to protect the rule of law and provide basic judicial remedies. As a result, “impunity permeated the country to such an extent that it took control of the very structure of the State.”7 The Myrna Mack case represents a rare challenge to this entrenched impunity, which continues to shield rights violators in spite of the end of the armed conflict and the consolidation of civilian rule. As the first human rights case from the 36-year conflict to go before Guatemala’s courts, it has become one of the country’s most important, gaining international attention. In 1991, at a time when allegations of human rights violations occurring during the civil conflict had yet to be brought before Guatemalan courts, Helen Mack decided to pursue those responsible for the murder. Her efforts led to the groundbreaking 1993 conviction of one of her sister’s attackers—Sergeant Noel de Jesus Beteta Álvarez, a non-commissioned army officer assigned to the EMP, a top-level army 4

“Agreement on the establishment of the Commission to clarify past human rights violations and acts of violence that have caused the Guatemalan population to suffer,” Oslo, 23 June 1994. Accessed at in January 2003. 5 Commission for Historical Clarification, Guatemala: Memory of Silence – Report of the Commission for Historical Clarification,- Conclusions and Recommendations, Guatemala, 1999. Accessed at in November 2002. See “Conclusions,” at para. 8. 6 Commission for Historical Clarification, Guatemala: Memory of Silence, Conclusions and Recommendations, “Conclusions” at para. 15. 7 Commission for Historical Clarification, Guatemala: Memory of Silence, Conclusions and Recommendations, “Conclusions,” at para. 10.

7

unit. However, that process left those who set the murder in motion—the “intellectual authors” in Guatemalan law—unpunished. Helen Mack then brought a criminal case against three senior army officers—a general and two colonels—eventually resulting in the unprecedented indictment and order for trial of General Edgar Augusto Godoy Gaitán, Colonel Juan Valencia Osorio, and Colonel Juan Guillermo Oliva Carrera for orchestrating the murder. At the time of the surveillance and murder of Myrna Mack, General Godoy Gaitán was the Chief of the Presidential General Staff; Colonel Valencia Osorio was the Chief of the Presidential Security Department of the Presidential General Staff; and Colonel Oliva Carrera was the Deputy Chief of the Presidential Security Department of the Presidential General Staff. On October 3, 2002, Guatemala’s Third Trial Court for Criminal Matters, Drug- and Environmentally-Related Crime convicted Colonel Juan Valencia Osorio for his role in ordering the killing. The other two were acquitted of the same charges. The trial was critical to Guatemala’s search for justice and the fight to ensure that such violations of human rights never occur again. It was a direct, frontal challenge to the impunity that has until now protected members of the security forces and other state officials. It was also a test of the capacity of Guatemala’s judiciary to continue to work toward the goal of assuming its rightful role as guardian of the rule of law. The peace accords that ended Guatemala’s internal conflict in 1996 placed the judiciary in a “pivotal role in the national agenda of reconciliation and democratization.”8 Central to that role is combating impunity, which the Mack case has come to symbolize. Though a number of cases have been opened against high-ranking military officers, no military officer had ever been successfully prosecuted for human rights abuses prior to the conviction in June 2001 of a retired colonel and army captain who were tried for the murder of Bishop Juan Gerardi in 1998. Even that case, which attracted extensive international attention, and which occurred long after the end of the civil war, was characterized by a sloppy investigation, the loss of crucial evidence, prosecutorial incompetence and an atmosphere of acute intimidation.9 Two prosecutors received death threats that obliged them to flee the country. Several witnesses were murdered or forced into exile. The night before the start of that trial, a grenade exploded in front of the home of one of the three trial judges, Yasmín Barrios.10

8

Inter-American Commission on Human Rights, Organization of American States, Fifth Report on the Situation Of Human Rights in Guatemala, OEA/Ser.L/V/II.111, doc. 21 rev., 6 April 2001. Accessed at in November 2002. See Chapter IV, para. 3. 9 Bishop Gerardi was murdered on April 26, 1998, days after presenting Guatemala: Nunca Más, The Recovery of Historical Memory, an account of human rights abuses committed during the civil war. The convictions of army officers Byron Disrael Lisma Estrada, Byron Miguel Lima Oliva, Obdulio Villanueva and priest Mario Orantes were annulled on October 8, 2002 by the 4th Court of Appeals, which declared aspects of the decision without legal basis and ordered a new trial. 10 Rachel Sider, Megan Thomas, George Vickers, Jack Spence, Who Governs: Guatemala Five Years After the Peace Accords (Hemisphere Initiatives: Cambridge, Massachusetts), January 2002. United Nations, p. 37. See also United Nations Economic and Social Council, Report of the Special Rapporteur on the independence of judges and lawyers, submitted in accordance with Commission on Human Rights resolution 2001/39, Addendum, Report on the mission to Guatemala, para. 51.

8

The few other cases in which lower ranking soldiers accused of human rights violations have been brought to trial have involved similar acts of intimidation. Judges and prosecutors have been subjected to extreme pressures in those trials as well, a factor in due process irregularities and excessively lenient treatment for defendants. For example, international observers sharply criticized the 1998-1999 trial of 25 soldiers for an October 1995 attack on returning refugees in the Xamán community that left eleven persons dead, including two children, and 27 injured. The commander of the unit and ten soldiers were convicted on a modest charge and sentenced to five years in prison, commutable for a small payment of less than $1 per day. The other 14 were released. MINUGUA, the U.N.’s verification mission that observed the trial, found many irregularities. In particular it found that the tribunal failed to properly consider the evidence and that the ruling lacked a legal foundation, leading to a situation in which a grave human rights violation was not adequately sanctioned. MINUGUA also considered the public prosecutors to be ineffective and unprepared. In addition, MINUGUA documented an intensification of the climate of intimidation as the verdict approached, specifically a court room commotion in which supporters of the defense shouted epithets against U.N. observers and the prosecution, leading prosecutors to flee the court room. The case is now slated for retrial.11 In reports on successive missions to Guatemala in 1999 and 2000, the U.N.’s Special Rapporteur on the Independence of Judges and Lawyers, Dato’ Param Cumaraswamy, paints a grim picture of intimidation faced by Guatemalan judges, prosecutors, and other members of the judiciary and legal profession, including those judges who preside over human rights cases.12 The Organization of American States, for its part, reports that judges often face professional pressures, including “abrupt transfers of jurisdiction as a form of pressure or reprisal, and disciplinary procedures that are not clearly defined or applied with due process.”13 It also finds that prosecutors in human rights cases are frequently threatened and harassed.14 At least two of the three trial judges in the Mack case have been subject to such pressures. In a trial of suspects in the murder of a university student, two of the three trial judges, Judge Yolanda Barrios and Judge Morelia Ríos complained of death threats after issuing a verdict in the trial that “established the responsibility of the Minister of the

11 See Misión de la Verificación de las Naciones Unidas en Guatemala (MINUGUA), Suplemento al Décimo Informe sobre Derechos Humanos de la Misión de Verificación de las Naciones Unidas en Guatemala: Casos de Violaciones a los Derechos Humanos (A/54/688), Guatemala, 1999, para. 223-235, available at accessed November 2002. 12 See: United Nations Economic and Social Council, Report of the Special Rapporteur on the independence of judges and lawyers, Dato’ Param Cumaraswamy, submitted in accordance with Commission on Human Rights resolution 1999/31, Addendum, Report on the mission to Guatemala, E/CN.4/2000/61/Add.1, 6 January 2000; and United Nations Economic and Social Council, Report of the Special Rapporteur on the independence of judges and lawyers, submitted in accordance with Commission on Human Rights resolution 2001/39, Addendum, Report on the mission to Guatemala, E/CN.4/2002/72/Add.2, 21 December 2001. 13 Inter-American Commission on Human Rights, Fifth Report on the Situation Of Human Rights in Guatemala, Chapter IV, para. 42. 14 Inter-American Commission on Human Rights, Fifth Report on the Situation Of Human Rights in Guatemala, Chapter IV, para. 6.

9

Interior and the Director of the National Police, among others, in the murder.”15 Judges Ríos and Barrios, as well as the third trial judge in the Mack case—Judge Rudy Chin— were undoubtedly aware that colleagues presiding over pre-trial proceedings in the Mack case have been subjected to such pressures. For example, Henry Monroy, the first instance judge who ordered the three accused in the Mack case to stand trial in January 1999, was thereafter subjected to threats and intimidation that were a factor in leading him to resign his judicial position and take up residence abroad. Finally, the Mack trial occurred in the midst of a troubling recent upsurge in threats and attacks on human rights defenders.16 These threats and attacks included the following: •

In early 2002, forensic anthropologists working to exhume bodies of those killed during the early 1980s were threatened, as were others investigating massacres committed during the civil war. The exhumations could produce evidence that could be later used in human rights prosecutions.

•

Guillermo Ovalle de León, an administrative worker with the Rigoberta Menchú Tum Foundation, was shot and killed in April 2002. The organization was assisting survivors in the trial of the 1995 Xamán massacre, which had begun the day before Ovalle’s death, and had a suit pending in Spain against former Guatemalan officials for genocide and crimes against humanity.

•

In June 2002, subsequent to a visit to Guatemala by the Special Representative of the U.N. Secretary General on Human Rights Defenders, Hina Jilani, death threats were sent to eleven representatives of local human rights organizations with whom she had met.17

•

In July 2002, offices of five non-governmental organizations were broken into and ransacked in the middle of the night.

•

Manuel García de la Cruz was brutally murdered and decapitated in September 2002. He was a human rights and development activist with CONAVIGUA and had participated in mass grave exhumations.

•

Antonio Pop Caal, respected indigenous rights lawyer and Mayan leader, was kidnapped and murdered in October, 2002.

15

United Nations Economic and Social Council, Report of the Special Rapporteur on the independence [of judges and lawyers, Dato’ Param Cumaraswamy, submitted in accordance with Commission on Human Rights resolution 1999/31, Addendum, Report on the mission to Guatemala, para. 44. 16 While attacks on human rights defenders have occurred throughout the civil war and since its end, numerous reports received indicate a recent increase in such attacks. See, in particular, United Nations, Economic and Social Council, Report by Ms Hina Jilani, Special Representative of the Secretary-General on the situation of human rights defenders, submitted pursuant to Commission on Human Rights resolution 2000/61to the Commission, E/CN.4/2003/104/Add.2, 6 December 2002, para. 63. 17 This threat is discussed in more detail below.

10

•

Noé de Jesus Gómez Limón, a witness in the Gerardi case, was murdered in December 2002. He had been threatened in days prior to his death, and warned not to testify in the upcoming re-trial.

Threats and attacks aimed at discouraging human rights prosecutions—directed against victims and their families, witnesses, lawyers, prosecutors, judges, and human rights defenders pressing the cases—have left Guatemalan society to “understand that justice may be sought at one’s own peril”18 and undermine the fairness of the few human rights trials that are held. In the Mack case trial, the combination of serious obstacles impeded the investigation and prosecution of the case from the outset and threats and attacks upon witnesses, lawyers, judges, and investigators clearly put the prosecution in a disadvantaged position. These obstacles were offset somewhat by the courage of those pursuing and supporting the case, including Helen Mack, her legal team, and the staff of the Myrna Mack Foundation, as well as witnesses, judges and prosecutors who carried out their respective duties admirably in spite of the atmosphere of intimidation. The remarkable result was that a trial occurred, albeit one compromised by document destruction and witness intimidation. It is clear that the absence of evidence to which the prosecution was entitled including official documents that described the nature and role of the EMP, heavily hampered the prosecution. It is more difficult to measure what direct impact the atmosphere of intimidation, which persisted through the trial, may have had on the outcome of the proceedings. What is clear is that the extreme tension cast a pall on the proceedings. While there is no indication that the atmosphere of intimidation led the court to favor one side over the other, it is likely that the security concerns were a distraction for the members of the court. As a human rights organization committed to advancing justice, human dignity and respect for the rule of law, the Lawyers Committee for Human Rights sent legal experts to observe the trial for the murder of Myrna Mack with concern for the rights of all involved, including victims and defendants. The Inter-American Commission on Human Rights has noted that while Guatemalan criminal justice frequently leaves victims unprotected and perpetrators unpunished, criminal suspects that are prosecuted “are often prejudiced by the failure of the authorities to carry out [the prosecution and punishment] in accordance with the law and respect for due process, thereby further delegitimizing the system.”19 At the same time, the Lawyers Committee experts were conscious of the history of threats and violence against complainants, prosecutors, judges, and prosecution witnesses in this and other human rights cases in Guatemala. The observers accordingly sought to document the existence or results of any such pressures in this case and to assess the extent to which the prosecution’s arguments were duly heard and considered by a competent, independent, and impartial tribunal.20 18

Inter-American Commission on Human Rights, Fifth Report on the Situation Of Human Rights in Guatemala, Chapter IV, para. 48. 19 Inter-American Commission on Human Rights, Fifth Report on the Situation Of Human Rights in Guatemala, Chapter VII, para. 3. 20 As an organization committed to ending impunity for gross human rights violations by state agents, the Lawyers Committee for Human Rights has also served for many years as a representative of Myrna Mack’s family in litigation against the State of Guatemala before the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.

11

III.

APPLICABLE LEGAL STANDARDS

A. International Law International human rights law recognizes that both the victims of a crime and those accused of committing a crime require protection from abuse. The International Covenant on Civil and Political Rights (ICCPR) and the American Convention on Human Rights (American Convention), both of which bind Guatemala, protect the full panoply of the rights of defendants in criminal proceedings, including the right to a fair and public hearing by a competent, independent, and impartial tribunal and the right to appeal. Those who have had their rights violated, including the victims of certain types of crime, are also protected by these instruments. Article 25 of the American Convention, read together with Articles 1 and 8, requires Guatemala to provide effective recourse to a competent court or tribunal when rights are violated, including in cases where the violation may have been committed by persons acting in their official capacities.21

21

Article 1, para. 1 of the American Convention reads: 1. The States 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 for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition. Article 8 reads: 1. Every person has the right to a hearing, with due guarantees and within a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature. 2. Every person accused of a criminal offense has the right to be presumed innocent so long as his guilt has not been proven according to law. During the proceedings, every person is entitled, with full equality, to the following minimum guarantees: a. the right of the accused to be assisted without charge by a translator or interpreter, if he does not understand or does not speak the language of the tribunal or court; b. prior notification in detail to the accused of the charges against him; c. adequate time and means for the preparation of his defense; d. the right of the accused to defend himself personally or to be assisted by legal counsel of his own choosing, and to communicate freely and privately with his counsel; e. the inalienable right to be assisted by counsel provided by the state, paid or not as the domestic law provides, if the accused does not defend himself personally or engage his own counsel within the time period established by law; f. the right of the defense to examine witnesses present in the court and to obtain the appearance, as witnesses, of experts or other persons who may throw light on the facts; g. the right not to be compelled to be a witness against himself or to plead guilty; and h. the right to appeal the judgment to a higher court. 3. A confession of guilt by the accused shall be valid only if it is made without coercion of any kind. 4. An accused person acquitted by a nonappealable judgment shall not be subjected to a new trial for the same cause. 5. Criminal proceedings shall be public, except insofar as may be necessary to protect the interests of justice. Article 25 reads: 1. Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or 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 States 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.

12

B. Domestic Law Defendants in Guatemalan criminal cases are protected by rights set out in the constitution and domestic legislation. Article 12 of Guatemala’s Constitution provides for the right to a legal process before a competent tribunal established by law, while Article 14 upholds the right to the presumption of innocence. These rights accord with Article 14 of the ICCPR and Article 8 of the American Convention. Articles 203 and 205 of the Guatemalan Constitution provide for judicial independence. The right to a fair hearing is also reflected in Guatemalan legislation, including Article 4 of the new Code of Criminal Procedure (Código de Proceso Penal) which places the burden of proof on the prosecution and requires proof beyond reasonable doubt (Article 14). Article 12 of the Constitution sets out the right to a legal defense, and Guatemalan law allows the defendants other minimum guarantees enumerated in Article 14 of the ICCPR, including the right to know the case against oneself and not to be compelled to testify against oneself or to confess guilt (see Code of Criminal Procedure, Articles 71, 15, 334, 104, 92, 81). The Guatemalan Constitution and legislation also protect against unlawful, arbitrary interference with privacy, family, home, and correspondence in accordance with Article 17 of the ICCPR.22 As for victims of human rights violations, there are general guarantees under Guatemalan law, particularly Article 2 of the Constitution, which requires the State to guarantee justice to the inhabitants of the Republic. Guatemalan criminal procedure has undergone dramatic revision in recent years as part of the effort to modernize the administration of justice and to render it consistent with rights guaranteed in the Constitution. The new Code of Criminal Procedure came into force by way of Decree 51-92 on July 1, 1994. While implementation has been slow due to lack of resources and commitment to change by personnel working in the justice system, the changes have represented a significant advance over a system that was widely condemned as obsolete and ineffective. The new system, while slow to be implemented, represents an advance over the old in terms of protecting rights of both victims and aggrieved parties on the one hand, and accused persons on the other. The new system requires a public trial in which oral arguments are heard and an accuser and the accused are present and stand on equal footing before an impartial tribunal that makes a decision based on the persuasive value of evidence. Evidence is now gathered in criminal investigations under the direction of the independent prosecuting authority (Ministerio Público, or Public Prosecutor’s Office), the body responsible for deciding whether to charge the suspect. The evidence gathered is also submitted to a judge of first instance who must decide whether a case will go to trial. Other than the resolution accompanying the trial order—which is essentially the indictment—the trial court begins with a clean slate. No conclusions are drawn about evidence prior to the trial itself, when it can be scrutinized and challenged by the defense. Finally, the trial itself is carried out before and in the presence of the three-judge tribunal that decides guilt or innocence. The proceedings are of an adversarial nature. Witnesses are normally called by the respective parties, testify under oath in open court, and can be cross-examined. 22

Ministerio Público de la República de Guatemala, Manual del Fiscal, Guatemala, 1996, Section A.

13

The Guatemalan Code of Criminal Procedure provides for aggrieved parties or victims of crimes, including crimes constituting human rights violations, to involve themselves in the prosecution as a “querellante adhesiva” (private accuser). While it is contemplated that, in the normal course, the prosecution of crimes falls to the public prosecutor’s office, Articles 116 and 117 of the Code allow an aggrieved party, including specified members of the victim’s immediate family, or indeed any citizen in cases where public officials are accused of human rights violations in the exercise of their official functions, to either initiate a prosecution or formally join a prosecution carried out by the public prosecutor. The private accuser enjoys broad prosecutorial powers that include presenting relevant evidence, objecting to evidence presented by the defense, requesting recusal of members of the tribunal, and appealing the decision. In the Mack case, each of the three accused, as well as the public prosecutor and the private accuser (Helen Mack), were full parties before the court, enjoying the right to counsel, the right to be present during the proceedings, the right to cross-examine witnesses, and the right to present evidence.

14

IV.

FAIRNESS PRIOR TO THE TRIAL

The fairness of the trial itself in any criminal prosecution is profoundly affected by what occurred in investigative and pre-trial phases. This section accordingly examines issues of fairness prior to the trial and their impact on the trial proceedings, based on close observation of the proceedings against the three accused that the Lawyers Committee has undertaken since 1996 as representative of Helen Mack in a related case before the InterAmerican Commission on Human Rights. It concludes that the defendants, having been afforded extensive access to judicial safeguards provided for by Guatemalan law, were not subjected to unfair treatment at any point in the pre-trial process. In contrast, the prosecution were disadvantaged by irregularities in the investigative phase, by restrictions on access to evidence, and by threats and intimidation. A. Fairness for the Accused: Judicial Scrutiny Prior to Trial While representatives of the Lawyers Committee were present at the Mack trial primarily to observe whether the rights of the victim were respected, they were also conscious of the rights of the accused and the importance that they be respected. As indicated below, the defense and their supporters have claimed that the defendants were being scape-goated and brought to court in a highly political trial initiated by an aggrieved family member and an overzealous prosecution on trumped-up, inconclusive evidence. The Lawyers Committee finds no basis for these claims. It is important to note that safeguards for criminal defendants provided for under Guatemalan law were applied to the fullest extent in this case. The first of these safeguards concerns the status and role of the Public Prosecutor’s office that bears the responsibility for prosecuting criminal cases and for directing preparatory investigations. The Public Prosecutor’s office, in the exercise of its prosecutorial functions, has a measure of autonomy from the executive, judicial, and legislative branches of the state. The prosecutor’s autonomy from the executive is designed to shield defendants from overtly political trials. In addition, in Guatemalan law, the prosecutor’s role as director of the investigation and prosecution acts as a check on any private accuser, helping to prevent frivolous private prosecutions by aggrieved family members. Accordingly, even though Helen Mack was unquestionably the driving force behind the prosecution, the public prosecutor’s office was always in charge of the investigation. The second major safeguard in place in Guatemala’s criminal justice system is the judicial oversight that provides further protection against vendettas and frivolous actions dressed up as prosecutions. Before a case even gets to trial, preliminary proceedings are overseen by a first instance judge. The judge of first instance has the dual role of providing oversight of the public prosecutor’s investigation to ensure that the public prosecutor respects the legal rights of the accused, and presiding over the intermediate phase in which it is decided whether there is sufficient basis for trial. This judge also decides whether the accused will be detained or released on bail once charged.

15

In the Mack case, it took nearly five years for the case against the three accused to reach a judge of first instance, in spite of Helen Mack’s determined efforts to have them promptly prosecuted. The trial court that convicted Noel de Jesus Beteta Álvarez in 1993 foreclosed proceedings against the three higher ranking officers of the EMP, and was supported by an Appeals Court decision. However, a critical 1994 Supreme Court ruling reversed the Appeals Court decision and ordered criminal proceedings to proceed against the three superior officers on the ground that the inquiry to date had raised suspicion as to their possible involvement in the crime. However, an appeal of that ruling to the Constitutional Court further stalled the case for over a year, even though it was ultimately disallowed. Legislative reform meant the case against the defendants was reviewed by two first instance judges—one military and one civilian. Both allowed the prosecution to proceed. Over a year after the 1994 Supreme Court ruling the case was sent to a first instance military tribunal judge because of the military status of the three accused, although a special civilian public prosecutor named Mynor Melgar was assigned to gather the evidence. Convinced that there were grounds for trial, the military judge of first instance ordered that the case proceed.23 This ruling was upheld on appeal. When a July 1996 law dramatically scaled back the jurisdiction of Guatemala’s military courts, the case was sent to a first instance civilian judge, although a series of appeals and other motions interposed by the defense delayed this process for a further two years. Under the further scrutiny of this civilian first instance judge, Prosecutor Melgar brought formal charges against the three accused in June 1998, formally ending the investigative phase. Prosecutor Melgar charged Godoy Gaitán, Oliva Carrera, and Valencia Osorio with murder under Articles 132, paragraphs 1, 4, 5 and 6, and Article 36, paragraphs 2 and 3 of the Guatemalan Penal Code.24 The officers were each charged with criminal responsibility for their role as the intellectual authors of Myrna’s murder, including the tracking, surveillance, and killing. They were accused of ordering certain personnel of the EMP, which was the elite military unit they ran, to carry out the killing. Once formal charges are lodged against a defendant, the Guatemalan criminal justice system requires yet another level of judicial scrutiny before the case finally goes to trial. The judge of first instance presides over an oral preliminary hearing, held in public, which assesses whether there is a basis for trial. This allows the accused an opportunity to be heard and to refute the charges, seek to have some or all of them thrown 23

The order was issued on June 11, 1996. Article 132. Comite asesinato quien matare a una persona (1) Con alevosía; … (4) Con premeditación conocida; (5) Con ensañamiento; (6) Con impulso de perversidad brutal Article 36. Son autores: … (2) Quienes fuerzan o induzcan directamente a otro a ejecutarlo; (3) Quienes cooperan a la realización del delito, ya sea en su preparación o en su ejecución, con un acto sin el cual no se hubiere podido cometer. 24

16

out, or challenge the proceedings. If this judge decides that sufficient elements are present in order to proceed to trial, he or she issues a trial order (apertura a juicio) in which the facts against the accused persons are laid out in written form. This judge also designates the tribunal that is to hear the trial. In the Mack case, the first instance judge in question was recused on petition by Helen Mack. The file was accordingly assigned to a new first instance judge named Henry Monroy. The hearing was held on January 27, 1999. On January 28, 1999, Judge Monroy rendered his decision that there were sufficient grounds to bring the three accused to trial. Accordingly, the suggestion by the defense that the accused were pulled into court without adequate judicial scrutiny is wholly without basis. In the normal course of events, the preliminary period before trial should last only three months and should be reviewed by a single first instance judge. However, the Mack case underwent four years of extensive judicial scrutiny in both civilian and military courts, at both first instance and appeal levels. This means that the initial case against the three accused parties received far more judicial scrutiny than the effective judicial scrutiny required by law. B. Disadvantages faced by the Prosecution (i) Restrictions on investigation and access to evidence While the Lawyers Committee finds no evidence of pre-trial improprieties that may have prejudiced the defense, the situation is quite different for the prosecution. The prosecution—represented by the public prosecutor and Helen Mack—suffered several disadvantages. First, the prosecution was not afforded access to evidence to which it was entitled, limiting its capacity to make its case. Over the course of the 12 years since Myrna Mack’s murder, investigators were intimidated, exiled, and killed, witnesses were threatened and prevented from testifying, documents were withheld and altered, and judges and attorneys were intimidated and driven out of the country. The cases against Noel de Jesus Beteta Álvarez, the perpetrator of the killing, and against his superior officers were deliberately undermined in several ways in an effort to deflect attention away from the EMP and the armed forces. First, the investigation of the scene of Myrna Mack’s murder was conducted in an extremely ineffective fashion, causing several items of evidence to be lost or destroyed.25 Due to this inadequate investigation, any fingerprint evidence of individuals present at the time of Myrna Mack’s killing in addition to Beteta Álvarez was lost. While there is testimonial evidence indicating that Beteta Álvarez was not Myrna Mack’s sole killer, no other members of the EMP were indicted, due in part to the lack of physical evidence.

25

An example of this flawed investigation concerns the taking of fingerprints at the crime scene. The police stated that they were unable to take fingerprints of the area since it had begun to rain. However, the National Institute of Seismology, Vulcanology, Meteorology and Hydrology reported that no rainfall was recorded while the initial forensic investigation occurred that afternoon and evening.

17

Second, the police investigators on the case were subject to harassment, ultimately ending in the killing of one investigator and the flight from Guatemala of another, when they reported that the murder was politically motivated and named Beteta Álvarez, a specialist in the EMP, as a suspect. The principal detective, José Miguel Mérida Escobar, was shot and killed in August 1991 near the National Police Headquarters. Shortly afterwards, a second investigator, Julio Pérez Ixcajop, was forced to leave Guatemala with his family in fear for their lives. The police officer in command of these investigators, Rember Larios Tobar, also fled the country for his safety. The absence of these experienced investigators from the case, and the intimidation achieved by way of murder and forced exile hindered further investigation into the killing. Third, several eyewitnesses to the surveillance and murder of Myrna Mack, who made statements to the police investigators, soon themselves became subject to threats and intimidation. Consequently, they were deeply afraid to confirm their statements. Juan Carlos Marroquín Tejeda and José Tejeda Hernández, who had witnessed the murder and identified Beteta Álvarez as one of the two people who committed the killing, soon left the country in fear for their safety. Justino Virgilio Rodríguez, who had witnessed the surveillance of Myrna Mack prior to her murder, was also forced to leave the country for security reasons. The intimidation of these witnesses hindered the investigation, as they would have been able to identify both the persons who committed the crime and testify to the institutional support that the killers received. Only one exiled witness, Virgilio Rodríguez, who was given protection by the Canadian Embassy, testified during the trial. The other witnesses who had fled Guatemala were not available to testify in court. In an effort to preserve the testimony of these key witnesses, Helen Mack requested letters rogatory from the Guatemalan Foreign Ministry in 1998, authorizing her to depose these witnesses in their country of residence. To date, no letters rogatory have been issued, preventing the recording of these witnesses’ testimony. The Guatemalan government’s failure to produce official documents requested by the prosecution in an unaltered form posed major obstacles in the case. On numerous occasions, the prosecution requested information about the defendants, the EMP, and events occurring during the days before and after Myrna Mack’s murder from the Ministry of Defense, through the appropriate channels established by the rules of criminal procedure. Each time, the Ministry responded with either a rote citation of the law governing the EMP or an invocation of the confidentiality of matters of national security. While the first response was very unhelpful, the second response was, in addition, insufficient, because the Guatemalan legal system has an established procedure for handling evidence that is purported to be confidential due to national security interests. This procedure was not employed to evaluate the documents requested by the prosecution. The fact that a full investigation into the murder was never completed, combined with the fact that the authorities failed to provide necessary documentary evidence, formed a major part of the rationale for the 1996 decision of the Inter-American

18

Commission on Human Rights to admit the Mack case for consideration on its merits. In this decision the Commission stated: In this second proceeding, the private accuser Helen Mack has again been denied access to the evidence which would allow her to support her accusation against all of the persons responsible for the death of her sister. The absence of certain witnesses whose testimony would have provided greater elements of proof to assist in clarifying the responsibility of all of the defendants almost limits the accusation in this second proceeding and 26 prejudices its result.

Even after an agreement between the Guatemalan government and Helen Mack, signed in March 2000, which includes a commitment by the State to produce evidence, Guatemala continued to deny Helen Mack and the public prosecutor access to the requested documents. The prosecution’s ongoing attempts to access these documents demonstrate their importance to the case. Guatemala’s continuing denial of this evidence to Helen Mack and the public prosecutor indicates the lengths to which certain state institutions will go in order to hinder and obstruct the conviction of the intellectual authors of Myrna Mack’s murder. The obstruction and denial of evidence that preceded the trial constituted a violation of the American Convention on Human Rights, under Articles 8 and 25. Articles 8 and 25 have been interpreted by the Inter-American Court of Human Rights to apply to the investigation process and to the production of evidence before a competent tribunal, requiring that evidence be produced in a fair and unobstructed manner.27 The holding of an impartial trial process from September 3 to October 3, 2002, while a welcome advance, could not compensate for these violations. In addition, official commitment to pursuing the case has not always been as strong as it is currently. In fact, at the end of 1998, just as the prosecution was moving toward trial, prosecutor Mynor Melgar’s contract was allowed to expire, leading to a loss of continuity in pursuing the complex case at the Public Prosecutor’s office. Fortunately, Melgar was later reassigned to prosecute the case at trial. However, during transitions between prosecutors that occurred, an increased burden fell on Helen Mack, her legal team and the staff of the Myrna Mack Foundation. (ii) Intimidation of the Prosecution Threats and attacks against persons seeking to prosecute those responsible for human rights violations, including both public prosecutors and private accusers, are frequent and common in Guatemala. In line with this pattern, Helen Mack and the staff of 26

Inter-American Commission on Human Rights, Report No. 10/96, Admissibility, Case 10.636, Guatemala, March 5, 1996. The Inter-American Commission is empowered to consider only those cases which have exhausted all available remedies at the domestic level. However, where such domestic remedies are available on paper but are not in fact available in practice, or where there has been an unwarranted delay in rendering a final judgment at the domestic level, the Commission may declare a case admissible. See American Convention on Human Rights, Article 46. 27 See Genie Lacayo Case, Judgment of January 29, 1997, paragraphs 75-76; Bámaca Velásquez Case, Judgment of November 25, 2000.

19

the Mack Foundation have suffered threats and intimidation over several years.28 During the period before the 2002 trial, this intimidation intensified, and included the following: •

On June 7, 2002 Helen Mack received a written death threat issued in the name of a group called “Guatemaltecos de Verdad” (True Guatemalans) that called Helen Mack and ten other rights defenders “enemies of the homeland … that should pay with their blood and feel the steel of our bullets,” and ended with the warning “an activist spotted is an activist killed” in clear reference to the anti-guerrilla slogan employed during Guatemala’s internal war. Hina Jilani, Special Representative of the U.N. Secretary-General on Human Rights Defenders, together with Asma Jahangir, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions of the U.N.'s Commission on Human Rights, sent an urgent appeal on June 11, 2002 to the Government of Guatemala expressing “deep concern for the security and the physical and moral integrity of the human rights defenders mentioned above.”29

•

Credible information in mid-2002 of a murder plot against Helen Mack, led her to leave Guatemala for approximately three weeks in July and August of that year;

•

On July 25, 2002, unknown persons sought to enter Helen Mack’s residence;

•

On separate occasions in late July of 2002, two staff members were questioned by taxi drivers taking them home from work about Helen Mack, the Foundation, and the case.

The threats against Helen Mack were accompanied by a general increase in threats and violence against other rights defenders in Guatemala, including the April 29, 2002 murder of Guillermo Ovalle de León, a staff member of the Rigoberta Menchú Foundation. The gravity of the situation prompted the Inter-American Court of Human Rights, by a resolution of August 14, 2002, to order the Guatemalan government to take urgent measures to protect Helen and Mack Foundation staff. Nonetheless, further brazen acts of intimidation were yet to come, this time against Roberto Romero, Helen Mack’s attorney in the case. On August 23, just ten days before the trial commenced, Romero received a threatening phone call, warning him to “stop singing or suffer the consequences,” followed within minutes by the firing of three shots into his house. Fortunately, there were no injuries. This attack prompted the InterAmerican Court to issue another order to Guatemala to protect the attorneys, institutions, and people involved in the prosecution of the crime’s alleged intellectual authors.30 Although Lic. Romero continued bravely to lead the private prosecution of the case, there 28

See table of threats, at page 23. United Nations Expert Expresses Concern Over Threats To Guatemalan Rights Defenders, Calls For Government Action, United Nations Press Release, 12 June 2002. 30 Resolución de la Corte Interamericana de Derechos Humanos de 26 de Agosto de 2002, Medidas Provisionales Solicitadas por la Comisión Interamericana De Derechos Humanos Respecto de la República de Guatemala, Helen Mack Chang y Otros, , accessed December 2002. 29

20

can be no doubt that this action caused a significant disruption in his preparation. Further acts of intimidation occurred during the trial itself, coinciding in particular with September 11, the 12th anniversary of Myrna Mack’s murder. Lawyers Committee observers spent many hours over several days at the Mack Foundation headquarters in Guatemala City and concluded that threats and intimidation created a significant distraction. First, a considerable portion of scarce staff resources had to be redirected to attending to security arrangements, including meeting with competent authorities. Second, all staff members needed to pay constant attention to assessing risks and arranging preventative measures for all of their professional activities, further directing precious staff resources away from case preparation. Finally, threats against the personal security of staff inevitably affected their capacity to focus on the task at hand. Preparation for a complex case requires undivided attention. In the hostile atmosphere in which the Foundation was working, mental focus was made the more difficult by credible threats against personal security. As one staff member said, “To work most effectively, you have to feel secure.” While the Guatemalan authorities did a praiseworthy job at providing both individual and site security in line with the Inter-American Court resolutions, they have been less than effective at investigating the threats themselves and identifying the perpetrators. Many investigators are ill-trained or lack the necessary resources to carry out this task. Those investigators and prosecutors that do have the competence and capacity to carry out investigations are left without resources and are themselves subjected to threats. As a result, investigations are seldom effective.31 These acts of intimidation were particularly harmful to the prosecution in the Mack case given the unmistakable importance of the private accuser’s role—a vigorous role of particular interest to the Lawyers Committee. The private accuser essentially acted as a co-prosecutor and played a vital role in building the case against the accused, including identifying and arranging testimony of witnesses and pursuing and providing documentary evidence. In spite of the valuable and highly professional involvement of the public prosecutors, Helen Mack and key Foundation staff have also become the primary symbols of the prosecution against the accused both in Guatemala and internationally. The threats and attacks on Helen Mack’s lawyers and on Mack Foundation staff in the lead-up to the trial were aimed at the heart of the prosecution. A further distraction to the prosecution was a private action on criminal defamation charges initiated by defendant Oliva Carrera against Helen Mack on May 13, 2002, following a radio interview in which she mentioned his name. While an appeals court ruling quashed the defamation prosecution in September 2002, on the ground that there was no basis for the criminal complaint, some damage had already been done to Helen Mack’s preparation for the trial of the alleged intellectual authors of her sister’s murder. 31

The administration of President Alfonso Portillo has been roundly condemned by both national and international observers for unnecessarily increasing already generous military budgets while failing to provide desperately needed resources to other agencies such as the public prosecutor’s office, whose prosecutors assigned to investigating attacks on rights defenders are severely under-resourced.

21

The defamation complaint indeed created a further distraction for Helen Mack in the already extremely hostile environment that characterized the run-up to the murder trial.

22

Violence and Threats against Individuals involved in the Mack Case 1990-2002 The examples presented below are not an exhaustive list of all the violence and threats against involved parties. They are a sampling over a 12-year period Period I: Investigation and case against Noel de Jesus Beteta Álvarez 1990-1994

Period II: Investigation and presentation of evidence against military officers 1995-2001

Period III: Lead up to trial and trial 2002

Investigators Julio Perez Ixcajop and Rember Larios Tovar fled the country due to threats.

Witness Clara Arenas Bianchi, director of AVANCSO threatened prior to giving her statement to the Ministerio Público (1995).

Helen Mack received written death threats in June 2002 and left Guatemala for three weeks during July and August after learning of a plot to kill her. On July 25, unknown persons tried to enter Helen Mack’s home.

Investigator Jose Mérida Escobar murdered August 5, 1991. Witnesses Jose Haroldo Tejada Enriquez, Justino Virgilio Santana Rodríguez and Juan Carlos Marroquín Tejada fled the country due to threats. Three other witnesses threatened, including Clara Arenas Bianchi, director of AVANCSO, the social science association where Myrna Mack had worked. Mack Family (including Helen Mack) received numerous threats before and after Beteta Álvarez was tried and sentenced. The family home was under constant surveillance by unknown persons. Justice Carmen Ellgutter Figueroa, the judge who presided over the Beteta Álvarez case and sentenced him to prison, received threats during the trial and after the sentencing in 1993.

Mack Family home was broken into (1999). Mack Foundation Staff and Consultants, including several lawyers, were subject to numerous threats and acts of violence and intimidation over a several year period. This includes people who were followed or whose houses were under surveillance by unknown persons.* Mack Foundation associate Carlos Rodríguez was attacked by armed men while the woman who was with him was raped (2001). Special Prosecutor Mynor Melgar received a series of threats and was followed by unknown persons during the period of 1996-1998. Justice Henry Monroy, judge who called for proceedings against the three military officers accused of intellectual authorship of the murder, received threats and fled the country in 1999.

Lawyer Claudia Gonzales Orellana, was subject to surveillance at her home and was followed by unknown persons in a car. Lawyer Roberto Romero Rivera was subject to threats in the weeks before the trial. Prior to the trial, an unknown armed person entered his law offices on two occasions and on one occasion directly threatened him. His son was subject to death threats on the 12th anniversary of the murder. Mack Foundation staff member Walter Alvarado was followed by unknown persons. Other associates of the foundation were interrogated by unknown persons outside the foundation offices about the details of the case, mentioning details of the case that indicated extensive knowledge. Mack Foundation staff member Carmen Aida Ibarra was followed by unknown persons acting in an intimidating manner.

*In one of the cases of a threatened consultant, a petition in 2001 to the Inter-American Commission for Human Rights was successful in securing precautionary measures for the victim. To this date, no further investigations have been carried out despite evidence of state involvement - 23 -

V.

THE TRIAL

A. Context Given its political importance, the trial received extensive coverage in many Guatemalan national newspapers as well as on the radio, and to a lesser but still very significant extent on national television. Helen Mack, already a well known public figure in Guatemala for her fight for justice in the case, was on or close to the front pages throughout the trial, particularly near its beginning and end. The proceedings were also covered by the New York Times, Washington Post, Economist, Miami Herald, National Public Radio, BBC, CBC, and other international media. It received the attention of key cabinet ministers, including the attorney-general, who attended part of the proceedings, and the interior minister, who took a direct hand in ensuring that security was provided to Helen Mack and her team. The case was closely watched by international donors seeking to collaborate with the efforts of Guatemalan reformers to establish a credible court system. The Canadian and Swedish ambassadors, as well as the U.S. Chargé d’Affaires, attended some of the hearings, as did other senior officials from Guatemala and abroad. MINUGUA, the U.N.’s observer mission in Guatemala, maintained a presence throughout the trial. Throughout the struggle for justice in the case there has been an ongoing, wellorganized public relations battle against the prosecution by individuals and groups such as the prominent Military Veterans Association of Guatemala (Asociación de Veteranos Militares de Guatemala, AVEMILGUA), a lobby group founded in 1995 to provide moral and political support to the armed forces. The campaign included full-page ads in newspapers, long and short television spot announcements, street demonstrations, op-eds, and radio appearances. The leadership of AVEMILGUA denounced the considerable diplomatic presence at the trial as an attempt to intimidate the judges. Unnamed groups also demonstrated in front of the courthouse in the opening and closing days of the proceedings, carrying banners claiming that the human rights of soldiers were being violated. Unidentified supporters of the defense also set up a web site with the address —“the injustice of the Mack case.” A particularly virulent opinion piece published in a major daily newspaper and reproduced in that web site suggested it was “open season” on military officers, and that evidence was being acquired in a case backed by foreigners and supported with guarantees of free international travel or residency abroad to suspicious witnesses.32 On October 1, 2002 just prior to the verdict, a paid newspaper ad in the daily La Hora signed by the three accused intimated that their accuser has significant financial backing that skews the justice system against them.33 Godoy Gaitán’s wife, surrounded by over a dozen family members, also pleaded for an acquittal in a lengthy television spot on October 2. In the run-up to the verdict, major 32

Lionel Sisniega Ortero, El show de dos siglos, Siglo XXI, 12 October 2002. , accessed December 2002. 33 “La justicia se logre a través del funcionamiento del derecho, deber respetarse la autonomía del debido proceso y no presionar a los jueces con campañas publicitarias o presiones políticas,” paid full-page ad signed by Edgar Augusto Godoy Gaitán, Juan Valencia Osorio, and Juan Guillermo Oliva Carrera, La Hora, October 1, 2002, p. 15.

- 24 -

thoroughfares in Guatemala City were lined with yellow ribbons tied to trees and fence posts in solidarity with the three accused. Moreover, the Mack trial occurred when an appeal was being heard in the Gerardi case—the only other major human rights trial to have led to the conviction of senior military officials. One of the officers convicted in that case—a Captain from the EMP— echoed defense complaints about international involvement and likened his plight to that of the defendants in the Mack case. B. Structure of a Criminal Trial Trial courts in Guatemala are made up of a three-judge panel and all three judges must be present throughout the proceedings. Admission of evidence occurs in pre-trial proceedings involving all parties before the trial judges. The parties present lists of witnesses they intend to call, including experts, as well as documentary evidence they seek to have read into the record at trial. The governing principle for the admission of evidence is “libertad de prueba” (freedom of evidence), and it appears that all parties have very extensive scope to submit evidence for consideration by the court, although there is some opportunity for opposing parties to contest admission. Lawyers Committee observers were not present at this evidentiary stage of the proceedings, but were informed that the defense objected vigorously to the majority of evidence presented by the prosecution. Virtually all of the prosecution’s documentary evidence was admitted in spite of the protests of the defense, which interposed an amparo petition against the admission of this evidence that threatened to derail the proceedings and postpone the trial itself.34 The amparo petition alarmed the prosecution in the lead-up to the trial for two reasons. First, if successful, the loss of evidence would cripple the prosecution’s case. Second, another amparo motion (on an unrelated point) had frustrated preparations for an earlier trial date that had been set for October 2001. Even though in that case the amparo motions were ultimately dismissed, an interim motion was granted that stalled the case and another twelve months were added to the many years of delay and impunity.35 According to public prosecutor Tatiana Morales, the trial scheduled for October 2001 was suspended because the defense was able to win a preliminary injunction to suspend further trial activity pending the disposition of the outstanding amparo motion. She explained that in September 2002, the trial could proceed even though there were amparo petitions outstanding, because such an injunction was not granted.36

34

An amparo is a judicial remedy for violation of constitutional rights. While this remedy is an important judicial mechanism for the protection of human rights, it is frequently misused by defendants to prevent prosecutions from proceeding. 35 At the request of the Mack Foundation the Lawyers Committee wrote to the president of the Constitutional Court, Lic. Nery Saúl Dighero. See letter attached in Appendix Three. 36 Morales added that even if the Constitutional Court rules in favor of the defense, which based on the success record of defense amparos is very unlikely, the conviction would not be overturned.

25

Criminal proceedings include the following steps: •

Official opening: The presiding judge ensures all parties are present and declares the commencement of the trial;

•

Reading of the indictment: the trial order resolution is read aloud in court;

•

Preliminary objections: parties are given the opportunity to raise those procedural objections that they will not be able to raise subsequently. The tribunal rules on these issues;

•

Opening statements of the accused: the defendants are entitled but not required to make opening statements after which they may be questioned by the public prosecutor, the private accuser, and the defense attorneys, respectively. Defendants cannot be forced to make any such statements or answer any related questions;

•

Presentation of evidence. In the normal course of a criminal trial, the evidence is presented in a structured manner in the following order: ! expert witnesses for the prosecution ! expert witnesses for the defense ! witnesses for the prosecution ! witnesses for the defense ! documents for the prosecution ! documents for the defense.

The Criminal Procedure Code provides for expert witnesses to give opening statements, after which they are examined by the party who brought them, and then examined by the other party. The same order occurs with the eye-witnesses. The members of the court are empowered by article 378 of the Code to question the witness directly after the parties have done so. The reception of documents is a lengthy, apparently non-controversial stage in which documents presented to the court by the parties as evidence are read aloud by a clerk. At the end of the presentation of evidence, the parties can petition the court to accept additional evidence if the process to this stage suggests the need for such new evidence. However, the court can order the admission of new evidence only if it is “indispensably or manifestly useful” for establishing the truth. Closing arguments are delivered in the following order: • • • • •

Public Prosecutor Lawyer of private accuser Lawyers of the accused Public Prosecutor (reply) Lawyers of the accused (reply).

26

Finally, the aggrieved party is allowed to speak, followed by each of the accused. After the proceedings are closed the judges retire to deliberate in private. In their deliberations they are required to apply common sense and reasoned analysis (sana crítica razonada) to assess the value to be assigned to evidence presented by the parties. In theoretical terms, no piece of evidence is considered more important than another. Instead, the evidence as a whole is to be evaluated. Under Article 14 of the Criminal Procedural Code, any doubt is applied in favor of the accused. Accordingly, the standard of proof for conviction may be understood as certainty beyond reasonable doubt. In Guatemalan law, both the verdict (veredicto) and sentence (condena) are combined in the decision or “sentencia.” The decision need not be unanimous but all three of the judges must be present when the majority decision—both verdict and sentence—are read together by the court clerk. A dissenting judge may then give the reasons for his or her dissent. The parties in a criminal trial are entitled to appeal on both substantive and procedural grounds. An appeals court may confirm, modify, or annul both acquittals and convictions issued by the trial court. C. The Conduct of the Proceedings From the moment the Mack trial began on September 3, on schedule at 9:00 a.m., before a cavernous court room filled with spectators, the presiding Judge—Morelia Ríos—conducted the proceedings in an even-handed fashion. The other judges on the panel were Yasmín Barrios and Rudy Chin. It is important to note that on September 19, 2001, Helen Mack unsuccessfully sought to remove Judge Chin from the panel following public statements he had made in which he indicated that judges could be influenced by friendships, threats, or favors.37 Helen Mack and the Mack Foundation considered that this statement rendered him unfit to judge a case of such high profile and in which judges would undoubtedly be under considerable pressure. The recusal proceedings were not successful. No bias, however, was manifest in the conduct of the proceedings, which in any event were handled by Judge Ríos, albeit in consultation with the other two judges. The observers did, however, note evident tension between Judge Ríos and Judge Chin after the sentence was read, when Judge Chin read a dissenting opinion. This is discussed in more detail below. Other fair trial indicators included the following: •

There appeared to be ample and appropriate access to the proceedings by both the public—including international observers—and the press.

•

The defendants clearly had adequate legal representation. Godoy Gaitán was represented by Efrén Dario Leche Hernández, Valencia Osorio by Sergio Danilo Castro Basteguita, and Oliva Carrera by Hector Fernando Gutierrez Mendoza. The

37

From written information provided by the Mack Foundation, on file with the Lawyers Committee for Human Rights.

27

lawyers appeared to be experienced trial lawyers. As indicated below, three other lawyers joined the defense team early on in the trial. •

All parties were able to call witnesses, examine and cross-examine, and were given ample opportunity to raise objections to the conduct of the proceedings.

•

All three defendants were given the opportunity to address the tribunal. All three chose to make both opening and closing statements, as provided in the Code of Criminal Procedure.38

The only major due-process irregularity that surfaced during the trial itself was the disappearance of a certified copy of an official Guatemalan Defense Ministry document that had been introduced into the proceedings by the prosecution while the case was still in its investigative stage. The document was important to the prosecution’s case because it confirmed that the unit within the EMP that Valencia Osorio commanded carried out a parallel intelligence function in which Beteta Álvarez was involved. However, this irregularity cannot be attributed to Judge Ríos’ court as it had disappeared before the custody of documents had been transferred to that court. The prosecution rightly viewed the disappearance of this key document as very suspicious, particularly in light of the history of cover-up of the crime discussed above. The prosecution, which had photocopies of the document, sought to reintroduce these copies into evidence but was turned down by the court.39 From the outset, the presiding judge appeared determined to keep the proceedings from becoming bogged down in the kind of procedural disputes that had plagued the case against the accused since it began in 1996. Following the roll call of witnesses and the reading of the indictment against the three accused, the preliminary objections phase was dealt with in only three hours. The Mack Foundation had expected this phase to consume three days. This unexpectedly rapid pace meant that plans to bring in some prosecution witnesses who remained abroad because of concerns for security had to be juggled. At 12:30 p.m. on September 3 the opening statements began. All three defendants, beginning with General Godoy Gaitán and followed by Colonel Valencia Osorio and Colonel Oliva Carrera, elected to make opening statements, and all three answered questions from the lawyers for the prosecution and defense, during which the presiding judge advised and reminded them that they were not obliged to answer questions put to them. All three also made closing statements at the end of the hearing. The content of their presentations is discussed below. Any concern on the part of international observers that the panel, directed by Judge Ríos, would act timidly towards their high-ranking defendants was dispelled by the end of the first day of proceedings. The judges surprised all concerned, including the prosecution, by ordering that the defendants, who had been free on bail since they were 38

Article 370 of the Code of Criminal Procedure permits, but does no require, them to make an opening presentation. The public prosecutor, the private accuser, and the defense are then entitled to question the defendant who makes the presentation. Article 380 gives the defendants the option of making a final statement prior to the close of the hearing. Neither the opening presentations nor the closing statements are made during the stage where witnesses testify and they are not made under oath. 39 An excerpt from this document is reproduced in Appendix Four.

28

charged in 1996, be detained for the remainder of the trial. Although the prosecution had not requested this, the presiding judge cited the need to ensure the hearing was carried through to completion.40 The defense objected vigorously but the court held firm. Accordingly, at the end of the first day of proceedings, heavily armed members of the Special Police Force of the National Civilian Police handcuffed the three men and led them away into custody.41 The following day, the defense requested the court to move the accused from the civilian jail to which they had been assigned to a military jail, on the grounds that they were military officers. Both the public prosecutor and the private accuser vigorously opposed such a transfer. Their concern was clearly that it represented yet another attempt by the defense to reintroduce the issue of military jurisdiction into the proceedings. This jurisdictional dispute had long been a serious one, leading to lengthy delays in the proceedings. According to Hogan & Hartson L.L.P—Helen Mack’s lawyers before the Inter-American Court—the defense had already raised the jurisdiction issue on at least twenty occasions since the military courts were virtually abolished and this was one of the main arguments used by the defense to cause delay in the case. Accordingly, the Lawyers Committee believes the court was right to deny both the petition and the “reposición” or reconsideration motion that the defense then interposed.42 The defense lost the “reposición” and, predictably, later interposed an amparo motion before an appeal court seeking a reversal of the court decision declining their “reposición” motion. On September 5, when witness testimony began, the court exercised its discretion to afford flexibility to the prosecution as regards the order in which its witnesses would be presented. Expert witnesses Kate Doyle, a U.S. citizen, and Colonel Clever Alberto Pino Benamú, a Peruvian citizen, as well as eyewitness Virgilio Rodriguez, the newspaper vendor who would testify to the surveillance to which Myrna Mack was subjected prior to her murder, and was driven into exile in Canada years before, all reside outside of Guatemala and needed to be able to schedule their testimony to ensure their safety. The procedural code affords judges some flexibility as regards the order of evidence, and the court used this discretion to allow an order that took into account the logistical and security challenges that the prosecution faced. Accordingly, the testimony of these prosecution witnesses ultimately occurred toward the end of the witness testimony phase. Witness testimony proceeded until September 17. The prosecution called thirteen witnesses, three of them experts, while defense attorneys called six witnesses, two of whom were experts. Both expert witnesses and eye witnesses were sworn in by the presiding judge and given an opportunity to provide an opening statement before being examined and cross-examined. Accounts of the witness testimony and the substantive cases of the defense and accused are outlined below.43

40

Press reports indicate that the court also cited risk of flight of the defendants. See, for example, “Detienen a tres militares acusados en juicio Mack,” Prensa Libre, September 4, 2002. 41 “Acusados sorprendidos por decisión de tribunal,” Prensa Libre, September 4, 2002. 42 A reposición is a motion for reconsideration of a procedural ruling on the initiative of any party. It requires the court to hear arguments from all parties, and then consider and settle the matter. 43 See also summary of witness testimony attached in Appendix One.

29

Throughout the presentation of witness testimony, there were frequent objections, by all sides, to questions put in the examinations and cross-examinations. In general, Judge Ríos ruled instantly on these objections. Frequently, the party that lost an objection would seek a reposición, or reconsideration of the ruling.44 Given the history of the use of a myriad of legal mechanisms, such as the amparo, to delay proceedings, the Lawyers Committee was alert to the need for an assessment of the extent to which these motions might be exploited by the defense to cause further delay. In fact, there were times when the use of this tool seemed to be exaggerated, particularly by the defense. The court struck an appropriate balance between allowing all parties to interpose legitimate procedural motions, while ensuring that the proceedings continued to move along. It is possible that the detention of the three defendants discouraged defense counsel from seeking to delay the trial to a greater extent. Even so, reconsideration motions persisted, and it seems likely that these were partially intended to create a record upon which to base appeals on procedural grounds in the event of convictions. Under Article 401 of the procedural code, these reconsideration motions and their resolutions are placed on the formal, written trial record and are legal grist for any future appeal. On September 17, the court shifted to the next phase of proceedings: the review of other evidence, including documentary evidence, which continued until September 30.45 Article 381 of the Code of Criminal Procedure provides that, at the end of the presentation of all evidence (prior to the closing arguments) the court can order, even on its own initiative, the reception of new evidence if it is “indispensably or manifestly useful” for reaching the truth. The defense sought to bring in expert evidence to undermine video- and audio-taped evidence that implicated their clients, while the prosecution sought to reintroduce the missing Defense Ministry document, the certified copy of which had mysteriously gone missing from the case file.46 After considering the requests from the parties for introducing the new evidence, the judges announced that none of it would be admitted, on the ground that the evidence did not qualify as “new” or it was not considered necessary for the resolution of the case. Both the defense and prosecution interposed reconsideration motions. These were soon turned down on similar grounds, although somewhat more detail was provided for the rationale of the judges’ decisions. In specific response to Helen Mack’s request to reintroduce into evidence the missing defense department document, the court stated that the document was already known (and therefore not new) to the extent that it had even been offered as evidence at an earlier stage of proceedings, and if it did not make it to the trial, it is a result of carelessness that cannot be attributed to the court. The Lawyers Committee believes that 44

When motions for reconsideration were made, Judge Rios prompted counsel for all parties for arguments on the initial ruling. When arguments were completed she would lean away from the microphone to consult with her two colleagues before issuing a ruling. On a handful of occasions, she called a recess to allow the panel to deliberate on the reconsideration motion in chambers prior to issuing the ruling. 45 In the Mack trial, this occurred primarily on September 18, 19, 20, 23, 24, 26, 27, and 30. The Lawyers Committee attended this part of the proceedings only sparingly. Note that much of September 19 was taken up with the testimony of the final defense witness, former president Vinicio Cerezo, who had been unable to testify earlier due to scheduling conflicts. 46 The prosecution had a photocopy of the missing document in its possession, and the original may still be in Defense Department archives.

30

in light of the harm already done to the prosecution’s case by the well-documented lack of access to official documents, the court ought to have found a way to ensure this document was included in evidence. However, while we disagree with the court’s ruling on this matter, we find the ruling has a legal basis, is not unreasonable, and does not demonstrate bias. Proceedings were suspended on September 30 following these rulings, opening the way for closing arguments on October 1. Public prosecutor Mynor Melgar spoke first, followed by Helen Mack’s lawyer Roberto Romero. Thereafter, counsel for each of the three accused rose to present their arguments. Arguments for both the prosecution and defense are discussed below. On October 2, the parties exercised their right of reply.47 Accordingly, public prosecutor Melgar spoke, followed by the attorneys for each of the three accused. The comments were brief and focused on evidentiary issues. Guatemalan law provides that after replies are completed, “the aggrieved party”—normally the victim or a member of the victim’s family—is entitled to speak, followed by the accused persons themselves, who are given the last word. The prosecution requested that Helen Mack be allowed to speak to the court in her capacity as aggrieved party. Because the Code of Criminal Procedure does not expressly permit the private accuser to make closing arguments or a closing statement, the defense immediately objected, stating that Helen Mack does not fall into the “aggrieved party” category under Guatemalan law, it being limited to children, parents and spouses of deceased victims. Judge Ríos responded to this objection by inviting Lucrecia Hernandez Mack, Myrna Mack’s daughter, to speak to the court. The public prosecutor interposed a reconsideration motion citing a provision of Guatemalan law on aggrieved parties which stipulates that persons who lived with the victim—as did Helen Mack at the time of her sister’s murder—could also fit this category. The defense objected, arguing a strict interpretation of co-habitation. It is important to note that the defense did not raise the issue of prejudice—i.e. that allowing Helen Mack to speak would essentially mean giving the private accuser a second opportunity to make closing arguments given that her lawyers had already spoken. Judge Ríos then called a short break for consideration of the issue, during which time Helen Mack and Lucrecia Hernandez Mack prepared for the possibility that the court would rule in favor of the defense, in which situation Lucrecia Hernandez Mack would speak as the victim’s daughter. However, when the judges returned, Judge Ríos announced that they would allow the reconsideration motion and permit Helen Mack to speak. All three accused took advantage of their right to make closing statements.48 Godoy Gaitán and Valencia Osorio spoke on October 2, immediately following Helen Mack’s remarks, and proceedings were then adjourned for the day. Oliva Carrera’s closing statement initiated the proceedings on October 3, at 8:30 a.m. Because the verdict was expected that day, the line to get into the courtroom for the October 3 47 48

The private accuser does not have the right of reply. As with the opening statement, the closing statements are unsworn.

31

proceedings was long—there were still 300 people waiting to get in when Oliva Carrera finished his closing statement at 9:00 a.m., according to one press estimate.49 Supporters of the defense had been bussed in early to occupy most of the seats in the courtroom.50 The presiding judge suspended the hearing at 9:00 a.m. and called the parties to reconvene at 4:00 p.m. for the reading of the verdict. On the afternoon of October 3 many more people lined up outside the court house to enter the courtroom for the scheduled reading of the verdict but few were able to enter as many people who had already entered at the morning session remained inside through the day, leaving few additional seats. Members of the press, who had arrived in large numbers for the reading of the verdict, were even more evident in the courtroom than in previous sittings. Several senior diplomatic officials were also present, including Stephen G. McFarland, the U.S. Chargé d’Affaires. The judges did not appear until long after the 4:00 p.m. scheduled time and the combination of the delay, the heat, the palpable tension, and the large number of heavily armed police, contributed to the sense of unease and uncertainty as to what might be expected. At approximately 6:30 p.m. the judges finally took their seats. Judge Ríos appeared very visibly anxious, compared to her cool composure over the course of the trial. After opening the session, she began by apologizing for the delay, explaining that there were technical problems with printing the written decision. Two clerks then proceeded to read out the court’s decision to a suddenly silent court room. One of the clerks spoke at such a pace that it was difficult for many to understand what was being said. However, it became clear early on in the reading, which took approximately two hours, that at least one of the defendants was likely to be convicted. The clerk read the court’s finding of fact that Juan Valencia Osorio transmitted the order to Beteta Álvarez to kill Myrna Mack, that the motive for her murder was political, and that resources of the EMP were used to carry out the killing. The court found Juan Valencia Osorio guilty of the murder, and acquitted the other two. Following the request made by both public prosecutor and the private accuser, the court opted to impose the maximum prison sentence of thirty years on Valencia Osorio, rather than the death penalty.51 The decision was split, with Judge Ríos and Judge Barrios voting to convict Valencia Osorio and acquit Godoy Gaitán and Oliva Carrera. The dissenting judge, Judge Chin, voted to acquit all three. In short, the judges were unanimous on the two acquittals, and were split on the only conviction. In accordance with Guatemalan criminal procedure, Judge Ríos passed the microphone to Judge Chin to express the reasons for his dissent. In his brief remarks Judge Chin explained he would have acquitted all three because there was no proof that the EMP—the Presidential General Staff—was involved

49

“Caso Mack: Valencia culpable; 2 absueltos,” Prensa Libre , October 4, 2002. Lawyers Committee for Human Rights representatives later learned that many of these people did not leave their seats after the suspension of the morning hearing, leading to an even greater crush for the afternoon session. 51 The prosecution had requested the maximum prison sentence, rather than the death penalty. 50

32

in the murder, and that evidence the majority used to prove it should not be given probative value. The first and only breakdown in the court’s control over the proceedings occurred when Judge Chin finished his remarks. The many supporters of the defense in the gallery gave Judge Chin a thunderous and prolonged standing ovation, despite Judge Ríos’ repeated instructions throughout the trial for the public to maintain order and not cause commotion. Unfortunately, Judge Chin neither sought to rebuke the applauding spectators nor pass the microphone back to Judge Ríos to do so. The awkward situation persisted as the presiding judge appeared to request the microphone. As both the ovation and Judge Chin’s inaction continued, the presiding judge ultimately reached over and removed the microphone from him. Microphone in hand, she then allowed the ovation to come to an end, after which she called the hearing to a close. At that stage some supporters of the prosecution stood and applauded briefly. The members of the court left the hearing room as the press swarmed around Helen Mack and the defendants. While Mack and others were being interviewed, the court house lights were turned off. A family member complained to a police officer, but nothing was done and, under the illumination of the TV lights, Helen Mack and other Mack Foundation staff, were hustled out a side door and to vans waiting outside. The written text of the decision of the majority was made available early the following week, as required by Article 390 of the Code of Criminal Procedure.52 It is noteworthy that the trial court ordered that all three accused, including the two acquitted persons, remain in prison until this decision is “firm.” Guatemalan criminal trial courts routinely issue such orders in serious cases such as murder and kidnapping, where the accused persons are in preventive detention during the trial. As a practical matter, this means that in the event there are no appeals, the verdict becomes final once the ten-day time period within which the appeal must be filed expires.53 In that case the acquitted persons are released, while convicted persons serve out any prison sentences. However, if either the acquittals or convictions are appealed within that time period, they are not considered “firm.” In that case, the accused persons remain in custody, whether they were acquitted or convicted, until an appeal court rules otherwise. The practice of extending preventive detention beyond even an acquittal is permitted but not mandated by Guatemala’s Code of Criminal Procedure.54 The practice may be explained in part by the fact that Guatemalan appeal courts are given broad powers to affirm, annul or reverse trial court decisions.55 In the Mack case, because the acquittals were appealed (by both 52

Extracts from the written decision, translated into English, are attached to the present report in Appendix Two. 53 Article 418, Code of Criminal Procedure. 54 See Articles 391 and 401 of the Code of Criminal Procedure. The tendency in Guatemala not to see the judgment as firm from the moment it is handed down may also be a reflection of Guatemala’s civil law tradition. Through recent reforms have rendered criminal trials in Guatemala akin in some ways to common law trials, there may also be a philosophical holdover from the fact that trials in the civil law countries are traditionally of a different character than their common law counterparts. See John Henry Merryman, The Civil Law Tradition: An Introduction to the Legal Systems of Western Europe and Latin America, Second Edition, 1996, p. 131. 55 See Article 416 of Guatemala’s Code of Criminal Procedure, which permits the public prosecutor and the private accuser, as well as the accused, to appeal. Article 419 allows parties to appeal both on the merits

33

the public prosecutor and Helen Mack), the two accused persons remain imprisoned pending hearing of the appeal. Valencia Osorio, who appealed his conviction, also remains imprisoned. The Lawyers Committee believes that as a general principle the circumstances justifying detention of an acquitted defendant should be narrowly defined and applied. Post-acquittal detention pending disposition of appeals may run afoul of guarantees as to the presumption of innocence enshrined both in international human rights law56 and in Guatemala’s own constitution (Article 14), which also limits the power of the state to detain (Article 6). Only where it is necessary to ensure the integrity of the process going forward, and specifically to prevent the accused from undermining the search for truth (for example, by threatening judges, witnesses or prosecutors, or by destroying or hiding evidence), should post-acquittal detention be permitted.57 Courts considering the acquitted defendants’ petitions for release should apply this principle in their deliberations. D. The Atmosphere of Intimidation The atmosphere of intimidation which has always accompanied the Myrna Mack murder case persisted and indeed intensified in the run-up to the trial and during the trial itself. Incidents occurred that sharply affected the lawyers and staff of the Mack Foundation, (eg. faulty application of the law) and on procedural grounds. For a discussion of the issues involved in the appeal of acquittals, and a summary of practices in a range of countries and legal systems, see The Irish Law Reform Commission, "Consultation on Prosecution Appeals in Cases Brought on Indictment," LRC CP 19 - 2002), May 2002, available at (accessed February 1, 2003). A "with prejudice" appeal, in which the appellate court has the power to overturn the trial decision, is described as "relatively common in various foreign jurisdictions," including Civil Law jurisdictions (para. 3.013). This involves a "prosecution avenue of appeal whereby a successful appeal would result in the acquittal being quashed and, where appropriate, a retrial being ordered" (Ibid.). The same source addresses the issue of appeals of acquittals as it relates to "double jeopardy," a principle set out in the International Covenant on Civil and Political Rights, art. 14 (7): "No one shall be liable to be tried or punished again for an offence for which he has already been finally convicted or acquitted in accordance with the law and penal procedure of each country." There are differing views on whether or how the double jeopardy principle is applicable to prosecution appeals, turning in part on the question of what is a final verdict. For example, the Irish Law Reform Commission contrasted the view of the Law Commission of England and Wales, "that retrials following successful prosecution appeals do not offend against the principle of double jeopardy at all as acquittals are not 'final' until rights of appeal have been exhausted or lost," while the United States federal courts "enlist the double jeopardy principle to restrict prosecution appeals to a limited range of circumstances" (para 3.017). Section 11(h) of Canada’s Charter of Rights and Freedoms is explicit that the right not to be retried for an offense applies to those who have been “finally acquitted” of the offense. The Supreme Court of Canada has ruled that criminal code provisions that allow the Attorney General to appeal an acquittal, and that empower appeal courts to order a new trial of an acquitted person or event substitute a conviction for an acquittal in some circumstances, do not run afoul of that section of the Charter. See Morgentaler et al. v. R., [1988] 1 S.C.R. 30, available at (accessed February 4, 2003). 56 See Article 14(2) of the International Covenant on Civil and Political Rights. 57 See Alberto Bovino, Temas de Derecho Procesal Penal Guatemalteco, Fundación Myrna Mack, Guatemala, 1997.

34

prejudicing their capacity to make their case. Generally, intimidation also touched many others, including judges, spectators, witnesses, and the press. The trial proceedings occurred under heavy security provided by the “Rapid Action Group” of the National Police and judicial security agents within Guatemala City’s Supreme Court building.58 Armed police officers were present both inside and outside the courtroom. Visitors were met with a judicial security checkpoint at the entrance to the court house, and a second checkpoint at the entrance to the courtroom, where all attendees were registered by judicial security agents who searched their bags and checked for weapons with a metal detector wand. In addition, at least four armed police officers from the Special Police Force of the National Police stood behind the three defendants throughout the trial Heavy security could do little to reduce the tension which persisted throughout the proceedings. The atmosphere of intimidation that had characterized the run-up to the trial became a fixture of the trial itself, particularly beginning on September 11, the twelfth anniversary of Myrna Mack’s death. By this date it had become clear that the court was disposed to finding the broad scope of evidence brought by the prosecution admissible. On September 11, a memorial at the scene of Myrna Mack’s death was planned for 8:00 a.m., an hour prior to the start of that day’s court hearings. Carmen Aida Ibarra, political advisor to the Mack Foundation, was followed by a menacing-looking man in dark glasses as she walked towards the memorial service. Realizing that she was being pursued, after three blocks she crossed the street to see if the man would follow. He also crossed and continued to walk behind her. Finally she went into a coffee shop and again he followed her inside. Terrified, she rushed into the street and hailed a taxi to the Mack Foundation offices. In a second incident that day, at 11:46 and 11:48 a.m., Manuel Gerardo Romero— the son of Mack lawyer Lic. Roberto Romero, who was helping his father with the litigation—received two death threats in the form of text messages on his cell-phone. The messages said “Prepárate porque el dia de manaña te vas a morir”—“prepare yourself because tomorrow you’re going to die”—and “ojalá estes asustado porque en realidad te vas a morir”—“you’d better be frightened because you’re really going to die,” and other foul and threatening language. The next day, Lic. Romero’s family was subjected to another incident. His wife and three children had gathered at his law office in the morning, preparing to go to the U.S. Embassy to arrange for departure in response to the threat.59 A U.S. national from the organization NISGUA was also present, to accompany them and provide some protection. When the group opened the door, ready to leave, they saw a menacing man outside and decided to remain within the building. Frightened, they called Lic. Romero’s brother, who works at the Human Rights Ombudsman’s office (Procuraduría de 58

“Jueces sorprenden en primera jornada de juicio oral: Militares a la cárcel,” Siglo Veintiuno, September 4, 2002. 59 As noted above, there had been a previous telephone threat after which the family home had been hit with gunfire.

35

Derechos Humanos) and had previously offered to drive them. He arrived and drove off with the group. The man who had been standing outside got into another car with a driver already in it, and that car followed them for a while. Finally they managed to get away safely.60 These events occurred at the height of the trial while international observation was at its most intense, and sent a clear message that those behind the longstanding threats and intimidation were still a force to be reckoned with. While neither the judges nor public prosecutors spoke publicly about their own security situations, there is little doubt that they were mindful of the threats that had surrounded the case and felt some anxiety for their own safety. On October 22, 2002, more than a fortnight after the Mack verdict was announced, a press report confirmed what had been suspected—that the Mack case judges had been granted and were continuing to receive special security protection against attempts at intimidation.61 The constant awareness of potential threats and violence surely acted as an unwanted distraction for the courageous and committed public prosecutors who prosecuted the case, as well as the judges. The court’s judicial function must have been affected by the atmosphere of intimidation, which undoubtedly operated to the detriment of the reflective, deliberative atmosphere required to adequately consider the prosecution’s complex case. Witness safety was also a concern throughout the trial. For this reason, details about the travel and other plans of witness Virgilio Rodriguez were kept secret by the prosecution until the last moment. He had earlier expressed fear of what would happen to him if he were to return to Guatemala and was therefore flown from Canada to testify and taken straight back to the airport afterward under the protection of the Canadian embassy, among others. After the verdict, Helen Mack voiced additional concern for the safety of prosecution witnesses and her fears appear to have been well-founded. There can be little doubt that worries about safety were an issue for prosecution witnesses generally. A member of AVANCSO staff told the Lawyers Committee, after the testimony of witness and AVANCSO head Clara Arenas, that she feared there might be retaliation against AVANCSO staff in retaliation for her testimony. All prosecution witnesses were no doubt aware that others had been forced to flee the country. Public scrutiny required for ensuring a fair trial may also have been compromised in at least two ways: first, by pressures on those attending the trial, and second, by pressures on the press. Of particular note was the presence in and around the courtroom of video and stills photographers without apparent press credentials, whose attention appeared more focused on the public in the court than on those directly involved. On the first day of proceedings, at least one individual with a video camera was recording footage of persons in the line outside the courtroom. The presence of cameras trained on the public and observers, particularly inside the court house, became routine. While it was never made clear who the 60 61

Lic. Romero’s vehicle was also followed on other occasions. “Protegen a veinte jueces,” Prensa Libre, October 22, 2002.

36

photographers were, the prosecution was concerned that military intelligence was likely monitoring the proceedings and warned observers that cameras would record their presence. While the trial was well attended, the atmosphere of intimidation may have discouraged some visitors. The trial proceedings received extensive press coverage, although intimidation may have influenced the tone of that coverage.62 The major television channels seemed to be somewhat sympathetic to the defense.63 Print and radio media provided more balanced, and in some cases more extensive coverage. Most of the many op-ed pieces on the trial appearing in Guatemala newspaper during the proceedings favored the prosecution. There were no reports of direct threats and intimidation against international observers, except for a handful of complaints of being jostled in the hall on the day of the verdict by supporters of the defense. At key times, including the beginning of the first week of the trial, when a small group of international observers arrived, and the second week, when a larger group of observers followed, banners were hung or held outside the court house with cumbersome slogans like “FOREIGNERS GO BACK TO YOUR COUNTRY AND INTIMIDATE YOUR OWN JUDGES.” The slogans may have been directed at the judges themselves, to the effect that ruling against the three army officers would be to align themselves with diplomats and human rights organizations from abroad. On October 3, tension began to rise both inside and outside the courtroom. Outside, the publicity campaign in favor of the defense was stepped up. For example, an early morning television spot on October 3 featured a commentator who repeated the old accusation that Helen Mack was “manipulated by the guerrilla.” He said that the trial was a political one, and decried the fact that foreigners, who do not pay taxes, were present at the trial, pressuring the judges. According to one press report, comments heard about the prosecution inside the courtroom over these two days included “Están cuidando a los guerrilleros” (“they are taking care of the guerrillas”).64 Statements such as this were naturally unsettling, as tens of thousands of suspected guerrilla sympathizers had been killed in the previous decades. Mack Foundation staff were instructed by Helen Mack not to respond to these insults. On the morning of October 3, the public gallery was full and more polarized than ever. Family and supporters of the defendants, lawyers for the defendants in the Gerardi case, and, according to press reports, former Defense Minister Marco Tulio Espinosa were present. In addition, men with brushcut haircuts and a “military appearance” were seated throughout the gallery. Human rights activists, family and friends of the 62

In the Bishop Juan Gerardi murder trial, there were reports of acts of intimidation against journalists covering that trial. The targets of intimidation were Sergio Méndez, a journalist for a radio news program called Guatemala Flash, and Estuardo Pinto, a journalist at the paper Nuestro Diario. See Inter-American Commission on Human Rights, Fifth Report on the Situation of Human Rights in Guatemala, Chapter IV, para. 23. 63 Control over television broadcast media is highly concentrated. See Inter-American Commission on Human Rights, Fifth Report on the Situation Of Human Rights in Guatemala, Chapter IX, The Right to Freedom of Thought and Expression. 64 Mack trial coverage in Prensa Libre, October 5, 2002.

37

prosecution, as well as members of the diplomatic corps, including Swedish ambassador Maria Leissner were seated in the galleries behind the prosecution table. When the morning session ended, friends and family of Helen Mack report being jostled and insulted by supporters of the defense. Esperanza Chang, Helen’s 70-year old mother, was encircled by defense supporters.65 There were even reports of small firearms being smuggled into the court room. In light of these developments, the Mack Foundation contracted minibuses and arranged for police escorts to transport Foundation staff to and from the reading of the verdict that afternoon. Furthermore, Helen Mack requested additional security from the Minister of the Interior and ultimately from agents of the SAAS—the Secretariat of Administrative Affairs and Security—a presidential security detail that is being groomed to take on presidential security in place of the EMP. Several agents accompanied her to the court room that afternoon for the reading of the verdict.66 Intimidation and threats have persisted since the verdict. Press reports following the trial said that witness Jorge Lemus Alvarado (also known as El Buky) repeatedly complained to the authorities of an intensification of death threats against him and his family following his testimony linking Juan Valencia Osorio to the crime. While one report indicated that the public prosecutor’s office was arranging protection for him,67 a later report suggested that intimidation was persisting in spite of his being enrolled in a witness protection program. In early November 2002, two police officers who had provided security for Judge Barrios after she received threats during the Gerardi trial were found dead, riddled with bullets, in their police cruiser.68 Due to the legitimate concern of a post-verdict violent backlash, the SAAS has continued to provide security for Helen Mack. E. The Case for the Prosecution The prosecution was led by the private accuser’s lawyers Roberto Romero and Claudia Gonzales, and by public prosecutors Mynor Melgar and Tatiana Morales. Lic. Romero is an experienced courtroom lawyer who had been retained by the Mack Foundation just prior to the start of the proceedings, while Claudia Gonzalez is a staff attorney at the Mack Foundation. Prosecutor Melgar was deeply involved in the case against the three officers from its inception until the end of 1998 when his contract expired. Tatiana Morales is an experienced prosecutor who heads the new office in the Public Prosecutor’s Office that prosecutes human rights violations. The prosecution built its case through expert and eyewitness testimony, as well as through written material that was read into evidence and through video-taped evidence that was presented in court. The 65

Based on observation by representatives of Lawyers Committee for Human Rights (LCHR); LCHR interview with Lucrecia Hernandez Mack; “Sobresaltos de un juicio turbulento,” El Periódico, October 4, 2002. 66 Helen Mack later expressed her appreciation for the additional security provided by the SAAS. Mack Foundation statement, October 4, 2002, on file with Lawyers Committee for Human Rights. 67 “MP protegerá a ‘El Bucky’,” Prensa Libre, October 19, 2002; and “Caso Mack: Amenazan a testigo clave,” Prensa Libre, November 22, 2002. 68 “Policías asesinados cuidaban a jueza,” Prensa Libre,, November 10, 2002. The news items stated that while no suspects were immediately taken into custody, initial investigations suggest the assailant could have been a police officer known to the victims.

38

evidence proffered included testimony from Jorge Lemus Alvarado (El Buky) to the effect that Beteta Álvarez was voluntarily video- and audio-taped during consensual jailhouse interviews in which he implicates two of the defendants—Colonel Valencia Osorio and General Godoy Gaitán, both of whom were above him in the chain of command— saying that Colonel Valencia Osorio ordered him to carry out the murder.69 Other evidence established the general political context of the time, including the prevailing military “National Security Doctrine,” whereby Myrna Mack’s work with displaced populations led her to be considered an internal enemy. It included detailed testimony and documentary evidence on the role of military intelligence in identifying and pursuing those categorized as internal enemies, the role of the EMP in carrying out the attack on Myrna Mack, the EMP’s chain of command, the specific roles of each of the three defendants in orchestrating the murder, and the subsequent cover-up, intimidation of witnesses, and hiding or doctoring of evidence. The prosecution set out in chilling and persuasive detail the complex, hidden military bureaucracy that was established to eliminate activists like Myrna Mack, from its governing philosophy to its mechanics of operation. The prosecution was able to partly compensate for the harm done to its case by the withholding and doctoring of official documents, and the culture of silence which continues to pervade Guatemala’s defense establishment with other independent documentation. This included the report of the Historical Clarification Commission and other reports on Guatemala’s internal conflict, declassified U.S. government documents, and expert witnesses from Guatemala, the United States, and Peru. These sources detailed the illegal activity of Guatemalan military intelligence and the central role of the EMP in its covert death squad operations. The case made was compelling.70 The prosecution sought to show that the three accused issued, approved, or helped to carry out the order to kill Myrna Mack. One of the main prosecution arguments was rooted in the idea of the chain of command -- that the three accused were involved in orchestrating the crime precisely because they were Beteta's superior officers and as such would have been responsible for his actions. Under the principle of command responsibility to which all modern military institutions adhere, the commander in a military hierarchy can be held directly responsible for the actions of subordinates in the chain of command. A commander is responsible both for orders he or she gives and for his or her failure to discipline subordinates who commit crimes in violation of superior orders or on their own initiative. Commanders are also responsible for being aware of the actions of their subordinates and cannot escape liability by refusing to oversee the subordinates' conduct. War crimes prosecutions have established that the only general requirement for criminal responsibility under this principle is that a commander has reason to know that his or her subordinates were about to commit or had committed a crime; and that the commander failed to take the necessary or reasonable measures to

69

Beteta Álvarez, as a defense witness at the trial, retracted these statements, claiming he was under the influence of drugs when he made them. 70 A more detailed account of this testimony is found in Appendix One of this report.

39

prevent such acts or punish the perpetrators.71 Under the principle of command responsibility, an officer must be able to show that he or she took every reasonable measure to hold subordinates accountable. Participation in a cover-up of crimes by subordinates would be evidence that they did not.72 In their closing arguments, lawyers for the prosecution summed up their case as follows. Presenting a cogent theory of how the murder was carried out by the EMP, public prosecutor Mynor Melgar argued that is was clear that all the legal elements of a murder were present, that Beteta Álvarez carried it out, that Beteta Álvarez was a member of the EMP, that he could not have acted alone, that the EMP had both legal and illegal functions including surveillance, that Valencia Osorio gave the order, and that there were others who knew about it and are equally responsible for their involvement. The prosecutor argued that Beteta Álvarez did not himself have a motive to kill Myrna Mack, but had monitored her movements for 15 days—actions that would not have been possible without the consent of superiors. These superiors did have their own motive for getting rid of Myrna Mack. They were operating in the context of an armed conflict in which the army had developed a counterinsurgency strategy incorporating the notion of the internal enemy. Myrna Mack was placed into that category. Her concern for social science research and the well-being of rural, indigenous populations was an obstacle to the army’s counterinsurgency strategy. Former president Vinicio Cerezo himself testified—for the defense—that he had known the EMP was implicated in illegal activity, and said as a consequence he had attempted to reform it. Turning to a review of the documentary evidence, the public prosecutor stated that there was ample evidence that the EMP carried on as before in spite of the civilian president Cerezo’s reform efforts from 1986 to 1991. He contended that the declassified U.S. government documents submitted in evidence showed that the EMP continued to illegally intercept communications, keep files on people, and undertake other illegal activities. Beteta Álvarez himself—in a statement to investigators before his trial— admitted that he carried out “investigative” work in “terrorism.” The prosecutor asked why, if Beteta Álvarez acted alone or on the margin of the EMP, had there been so much intimidation against those involved in the case since the murder? Who was carrying out such intimidation and why was police investigator Mérida Escobar murdered? The prosecutor proposed that there was a structure carrying out all of these activities. In the view of the prosecutor it is obvious that no written order directing Beteta Álvarez to murder Myrna Mack was going to be found. Instead, he argued, such an order can be inferred by looking at the whole picture. It is for this reason, according to the prosecutor, that the admissions Beteta Álvarez made on tape are valid: because they are consistent with all of the other evidence.

71

See, for example, Ilias Bantekas, “The Contemporary Law of Superior Responsibility,” American Journal of International Law, v.93, no. 3, July 1999, on the principle of command responsibility. 72 Put another way, superior officers must take action to investigate and to punish the perpetrators when personnel under their command commit criminal acts if they are not themselves to bear criminal responsibility for these acts. In the murder of Myrna Mack, there was no evidence that the officers indicted had undertaken to investigate or to punish the perpetrators within the EMP—quite the contrary.

40

Prosecutor Melgar asked the judges, when evaluating the evidence, to remember the terrible death toll of the internal conflict. He stated that the army was not on trial here, but that there were individuals within that armed structure who took the decision to eliminate certain people. He cited the testimony of Lemus Alvarado, who said Beteta Álvarez had told him that Valencia Osorio gave the order to kill with a “thumbs down” gesture, and argued that Beteta Álvarez could not have carried out the killing without an order. He proceeded to request a thirty year sentence for each of the accused. In his lengthier comments, Roberto Romero, Helen Mack’s lawyer, sought to weave together the many threads that make up the case. He began by placing the crime in its historical context, starting with Guatemala’s strategic position in a cold war setting, the pervasive influence of the military’s National Security Doctrine, the civil war environment at the time, and the military’s killing of many individuals because they were perceived to threaten the established order. Lic. Romero stated that as early as 1982 the army was aware of Myrna Mack, and that the defendant Oliva Carrera was the commander of the area in which she was conducting her research. Until she came on the scene, he argued, the plight of the rural indigenous communities was the business of the army alone. However, Mack understood the impact of the military campaigns on the civilian population. Due largely to her work, the civilian government became more involved in governing these populations. But the military maintained control and Myrna Mack became a military target. The second phase of Lic. Romero’s intervention focused on the structure of the army and in particular the role of the EMP. He stated that there was extensive evidence to show the EMP’s place within the army’s structure and that it was clear that the EMP was run by Godoy Gaitán in 1990. The Department of Presidential Security (DSP), a sub-unit of the EMP, was run by Valencia Osorio and was a façade for G2 military intelligence. This is confirmed by the truth commission reports and the testimony given by Kate Doyle. Moreover, Lic. Romero stated that declassified U.S. government documents show the connection that the DSP has always had with death squad killings and other illegal activities, including illegal interception of correspondence. The third phase of Lic. Romero’s remarks focused on the chain of command and the specific roles of the three accused. He cited documentary evidence that shows the titles and positions of the three accused within the EMP, the chain of command, and their positions therein. He referred to the testimony of former Defense Minister Camargo that he as defense minister had no control over Valencia Osorio, and that Godoy Gaitán was Valencia Osorio’s superior and would have had to approve his activities. He mentioned the specific role of Oliva Carrera, who was director of operations, and that he would have put infrastructure and resources at the disposal of Valencia. He also alluded to the coverup and intimidation that followed the crime, including the murder of police investigator Mérida Escobar. Lic. Romero concluded by citing legal provisions under which all three accused should be convicted, and called for the maximum prison sentence of 30 years for each of the accused, rather than the death penalty. Helen Mack, in turn, highlighted the persistence of the Doctrine of National Security

41

in 1990 in spite of the reform efforts of Vinicio Cerezo and his defense minister Hector Gramajo. She then focused on the intelligence function of the EMP, discounting defense arguments that this unit had no intelligence role. She also responded to other specific defense arguments made in closing arguments. For example, she argued that Lemus Alvarado’s video and audio cassettes had probative value because Beteta Álvarez had acknowledged that it was his voice in the recordings. Helen Mack explained that her sister had shown the human costs of Guatemala’s armed conflict, and that her work affected the image projected by the army, leading to the order for her murder. She then argued that the method of carrying out the murder followed a pattern typically used in intelligence operations. She cited the intelligence background of each of the three accused, and then, gesturing towards each defendant in turn, set out the specific role the three would have had in the command structure of the EMP: Valencia Osorio would have ordered, supervised and participated; Oliva Carrera would have made sure the order was carried out; and Godoy Gaitán would have approved the plan of operations as chief of the unit. Departing from her prepared remarks, Helen Mack said she was pleased that many representatives from the army were present at the trial, because Guatemala needs to debate and understand what happened during its history. Patriotism, she asserted, has to do with defending the country, not exterminating its citizens. She quoted General Douglas McArthur as stating that soldiers become criminals when they turn their arms on civilians. She also said that Guatemalans need to talk about what happened and about achieving justice, including in this case. In conclusion, she said that part of her sister’s legacy was the fact that her case reflects the history of many; that there was a time for everything, and that the time had come for justice to be done. F. The Case for the Defense The case presented by the defense was limited in scope. The substantive defense stuck to the official story that the accused, backed by many senior military officials, had long propounded: that the EMP had no intelligence function and had nothing to do with killings. They resorted to a description of functions spelled out in legislation indicating that the primary task of the EMP was to act as a security detail for the president, the president’s family, and international guests of the president. The strategy of focusing the substantive defense on this account was a gamble given that the prosecution would later present evidence that thoroughly documented the EMP’s operational intelligence function and related illegal activities.73 Notably, defense attorneys assiduously avoided another 73

For example, the prosecution introduced into evidence relevant sections of the Guatemala’s truth commission report that described the EMP’s true role. See Commission for Historical Clarification, Guatemala: Memory of Silence – Report of the Commission for Historical Clarification, Guatemala, 1999. The Conclusions and Recommendations volume, para. 105 of the “Conclusions” (accessed November 2002) states: The majority of human rights violations occurred with the knowledge or by order of the highest authorities of the State. Evidence from different sources (declarations made by previous members of the armed forces, documentation, declassified documents, data from various organisations, testimonies of well-known Guatemalans) all coincide with the fact that the intelligence services of the Army, especially the G-2 and the Presidential General Staff (Estado Mayor Presidencial),

42

potential defense, namely that the crime was planned and set in motion by the accused’s superiors in the army high command, even though intimations of the army’s broader institutional responsibility had surfaced in prosecution witness testimony. General Edgar Godoy Gaitán, the commander of the EMP at the time of the murder, opened his September 3 declaration with the statement “my hands are clean.” 74 He stated that from the moment he was named by then President Venicio Cerezo Arévalo on April 1, 1988, “I knew that I was disconnecting completely from the ministry of national defense and defense staff” and that his new mission was the “security of the [president], of his family, and those they indicated.” He claimed that he was unaware of AVANCSO—the research institute Myrna Mack helped found—at the time of the murder. He added that it was not his job to deal with these kinds of political issues, that he had nothing to do with Beteta Álvarez, that the EMP did not order her murder, and in any event the EMP was a small group of people that did not have the resources to carry out such an attack. He asked why it was that the prosecution only pursues the army— civilians could have been responsible. He defended the EMP and stated that it was staffed by carefully vetted and selected people. Godoy Gaitán was then questioned by the prosecution, beginning with the public prosecutor, who tried to draw out more information on the structure of the EMP. However, in his answers he stuck to his account of the limited functions of the EMP. Juan Valencia Osorio’s declaration on September 4 pursued similar themes, again suggesting the role of the EMP was nothing other than to provide security for the president, his staff, and the occasional foreign visitor. Drawing on a large calendar-chart, he sought to distance himself and his co-accused from the murder by showing Beteta Álvarez to have been on medical leave prior to and at the time of the murder, that Beteta Álvarez was not under his command at the time, and that he was in any event fired shortly after the murder for failing to comply with medical leave requirements. He showed several photos of one of Beteta Álvarez’s fingers in a mangled state to prove that he had needed medical leave, and complained that the public prosecutor had never put these photos into the record even though they were delivered to him. Valencia Osorio ended his remarks by defending the National Security Doctrine as favoring “peace and development.” The declaration of the third of the three accused, Juan Guillermo Oliva Carrera, on September 5, departed little from those of his two colleagues. In crossexamination, however, he did admit to having served in an intelligence function. The testimony of most of the half-dozen defense witnesses, including a former president, a former defense minister, a former deputy defense minister, and two former EMP officials, simply verified the defense account of the strict division of functions and obtained information about all kinds of individuals and civic organisations, evaluated their behaviour in their respective fields of activity, prepared lists of those actions that were to be repressed for their supposedly subversive character and proceeded accordingly to capture, interrogate, torture, forcibly disappear or execute these individuals. 74 Note that the defendants’ opening and closing statements are not made during the stage of the trial in which testimony is taken. Accordingly, they are not made under oath. Furthermore, while the prosecution is entitled to examine accused persons who make opening declarations, the presiding judge made it clear to the accused that they are not required to respond.

43

command structure as between the regular armed forces and the EMP. For example, the defense’s first witness, former Deputy Minister of Defense and EMP Chief Jose Luis Quilo Ayuso, echoed the accused in insisting that while all members of the EMP were soldiers, they took their orders directly from the President of the Republic, not the defense ministry. Lawyers Committee observers noted that the defense strategy excluded suggesting a defense that the majority judges ultimately used to acquit defendant Godoy Gaitán—namely that the crime could have been hatched outside of the EMP in the armed forces and that the order to kill Myrna Mack could have bypassed him. At least one of the defendants clearly contemplated a defense implicating the armed forces. In the very early stages of the trial, during which prosecution witnesses were testifying on the role of the armed forces in the murder, Valencia Osorio reportedly told a journalist that “What the witnesses say is true: the army killed her [Myrna Mack], not the President’s security detail.”75 The defendants did not, however, pursue this defense in the proceedings themselves. In their cross-examination of prosecution witnesses, defense lawyers did not raise the possibility that the crime originated outside of the EMP. For example, in their cross-examination of prosecution witness Clara Arenas, the head of AVANCSO who testified on September 4 that the armed forces had a political motive to kill Myrna Mack, defense counsel stopped short of asking if it was possible that Myrna Mack’s murder was carried out by army units other than the EMP. The defense refused to pursue this line of argument even after one of the expert witnesses for the prosecution—Hector Rosada— appeared to open a route to such a defense. In his September 9 testimony, Rosada referred to “Cofradías,” parallel power structures within the armed forces that did not necessarily track the official command structures, as a possible source of rights violations. He even stated that in the scheme of the contradiction-ridden armed forces at the time, that actual authorship for each of the human rights violations perpetrated overwhelmingly by state military forces was often hard to pin down. The defense could have drawn the witness out on this issue in order to elicit testimony that another unit could have been responsible for ordering Myrna Mack’s killing. The failure to advance such a defense suggests that even the defense may have been constrained, not by intimidation but by institutional ties, as such a strategy could have brought the armed forces into further disrepute, or sparked conflicts within the armed forces. To have advanced such a defense would have meant tacitly accepting that Myrna Mack’s murder was a political crime, and that security bodies were responsible for human rights abuses. While such a theory might have served to place more reasonable doubt in the minds of the members of the tribunal as to the individual responsibility of the accused, it would have placed greater scrutiny on institutional military wrong-doing and alienated the defendants from their support base in the army. Indeed, an argument implicating the military as an institution would have heightened concerns in military quarters, particularly if the trial were to become a forum for genuine substantive debate on the crimes of the armed forces. A vigorous response to prosecution arguments

75

“Militar acusa al Ejército,” Siglo Veintiuno, September 6, 2002.

44

concerning the armed forces strategies, doctrines, and institutions that led to the order to kill Myrna Mack was accordingly foreclosed as an option for defense counsel.76 Ultimately, the determination by the defense not to point fingers elsewhere in the army appeared to have little direct effect on the verdict. The dissenting judge implicated the army as an institution, and the judges whose majority decision convicted Valencia Osorio indicated that part of the reason for their acquittal of Godoy Gaitán was that the plan could have been hatched outside the EMP77. Accordingly, the judges included in their rulings arguments favoring the defense that defense counsel had failed to muster. The fact that defense counsel did not even advance a defense that ultimately helped acquit one of the accused may have been a choice that the defendants, all senior army officers, made to avoid the loss of sustained support for them by the armed forces and organizations of retired officers. In any event, as discussed below in the section on the verdict, the prosecution’s case was strong enough to counter a defense suggesting involvement of other branches of the army. Most defense energies were directed at advancing procedural defenses. On September 10, the defense attorney team doubled in size to six lawyers. The reinforced team resorted to procedural tactics frequently used in the pre-trial years, such as interposing motions and objections that were apparently aimed at complicating the proceedings and testing the judges. This was demonstrated during questioning of prosecution witness Leonel Gomez Rubella, who was with Guatemala’s Human Rights Ombudsman’s office at the time of the murder. The prosecutor asked the witness whether the Mack murder was “an extrajudicial execution.” The defense objected to the question, and the objection was turned down. One of the new defense lawyers interposed a reconsideration motion. The tribunal considered the motion and turned it down, and the question was asked. No sooner did testimony resume than the defense interposed another reconsideration motion over an unsuccessful objection to another question by the prosecution. It appeared at this stage that the trial might begin to deteriorate into little more than a series of objections followed by time consuming reconsideration motions, with the result that little attention would be paid to the substantive issues for which the accused were on trial. After considering and then rejecting the reconsideration motion, the presiding judge called all the lawyers from both sides forward and had a quiet conversation with them for several minutes. After this huddle the pace of the trial picked up and the prior, more manageable rate of objections and reconsideration motions was reestablished. According to a Mack Foundation bulletin,78 the judge stated that if objections had the exclusive intent of interrupting testimony, counsel could be subjected to legal sanction. Another example of the focus on procedural defense was the attention paid to a discrepancy in the name of a prosecution witness. On September 12, Virgilio Rodriguez 76

Had relevant official documents been made available during the proceedings, these issues could have received a public airing. 77 The court’s decision reads: “Also, it has not been totally proven that the plan of execution of which we have spoken would have been conceived at the level of the EMP…” i.e., elsewhere in the army. 78 Fundación Myrna Mack, “Acusados por Asesinato de Myrna Mack Refuerzan su Defensa,” September 10, 2002. On file with the Lawyers Committee for Human Rights.

45

was scheduled to testify after an enormous effort to bring him safely from Canada. Just before he was to testify, Judge Ríos announced that the court would not hear his testimony, because the name on his Canadian passport—Justino Virgilio Rodríguez—was different from his name on the witness list—Virgilio Rodriguez Santana. Under Guatemalan criminal procedure, each witness submits a piece of identification to the court for the duration of the testimony. After Lic. Romero stated that Rodriguez’s case is different because Canada does not use maternal surnames, explaining part of the discrepancy, the public prosecutor interposed a reconsideration motion, arguing briefly for the need to take a functional (as opposed to formalistic) approach to the matter. The defense lawyers disagreed vigorously, arguing that if the court heard Rodriguez, it would violate the fundamental principle of equality of the parties because the court had already refused to hear at least one defense witness, Xiomara Gómez, due to discrepancies between his name on the witness list and on his identification card. After a brief recess, Judge Ríos announced the decision to hear the witness, with the qualification that his testimony would be stricken unless the prosecution provided formal certification of his identity. One of the new lawyers brought into the defense team, Lic. Leopoldo Guerra, promptly interposed a reconsideration motion of the ruling on the previous reconsideration motion, making essentially the same arguments that were made in the previous round. Then Godoy Gaitán’s lawyer, Leche Hernández, announced he too would interpose a reconsideration motion; while Valencia Osorio’s lawyer stated that he thought that the two sides were not being treated equally on this issue. Counsel for Helen Mack—Lic. Romero—surprised all by offering to withdraw the witness in order to prevent any possible subsequent challenge to the verdict. The public prosecutor, however, argued that the witness should be heard, pointing out that the defense had not protested the rejection of their earlier witnesses previously.79 Given the real lack of fresh arguments, it was unsurprising that the court turned down the second round of reconsideration. Furthermore, Judge Ríos angrily rebuked the defense lawyers for questioning the court’s impartiality. “This will be the last time...” she said, “otherwise it will cost you dearly.” The defense lawyers who had spoken about impartiality all then apologized.80 Despite their objections to his appearance, none of the defense lawyers then rose to cross-examine Rodriguez, or challenge him in any way. The appearance of the witness gave the defense an opportunity to test the thesis, often propounded in newspapers by those sympathetic to the defense, that testifying against an army officer is a ticket to residency abroad. The defense did not, however, take advantage of this opportunity. They certainly could have asked about the benefits that Rodriguez had received, although it might have backfired upon them if he was then able to discuss the threats that drove him out of the country, and led to such attention to security arrangements. 79

This parting of the ways demonstrated that the public prosecutor and Helen Mack did in fact operate as separate parties, even at this late stage in the trial. 80 In the official court record, the account of this procedural battle takes up nearly 2 ½ pages, while the entire account of Virgilio Rodriguez’s substantive testimony takes up a mere ½ page.

46

The defense focus on procedure persisted throughout the reading of the documentary evidence which followed the witness testimony, and resumed immediately after the testimony of former president Cerezo. Procedural objections continued through the stage of the reading of the documentary evidence. The defense registered “protests” to the incorporation into evidence of several of the documents put forward by the prosecution. For example, court records show that the defense “protested the reception” of declassified U.S. government documents read into evidence by the prosecution on the grounds that much of the text had been blotted out (a point raised by the defense in crossexamination of Kate Doyle), and the fact that the documents as presented did not mention sources of the information. These “protests” did not lead to any resolution on the part of the court and did not appear to bog down proceedings. Instead, the defense seems to have been merely placing on the trial court record the fact that they considered that the documents in question should be inadmissible, as potential grounds for appeal. The Lawyers Committee believes that the trial court was right not to have considered the issue in this case as admissibility had been decided in an earlier phase. The defense strategy also included personal attacks directed against members of the prosecution, particularly Helen Mack, and to a lesser extent Mynor Melgar. The testimony of Noel de Jesus Beteta Álvarez for the defense, on September 17, echoed the attempts to defame Helen Mack that have frequently recurred through her twelve-year struggle for justice. Such tactics were evidently designed to distract attention from the merits of the case. During his testimony, Beteta Álvarez tried to explain away his jailhouse video- and audio-taped declarations, in which he implicated two of the accused (Valencia Osorio and Godoy Gaitán) in the murder. While he admitted under oath to having taped these interviews, Beteta Álvarez accused both private accuser Helen Mack and public prosecutor Mynor Melgar of having provided him with money in return for his jailhouse declarations. He suggested that Lemus Alvarado, his questioner, was passing him cocaine supplied by Helen Mack. Beteta Álvarez added that Helen Mack and Mynor Melgar had offered in 1997 or 1998 to help him (Beteta) and his family gain exile abroad in return for courtroom testimony against the three accused verifying the statements he had made on tape.81 The claims are odd. For example, it is unclear how exile would have even been feasible given that Beteta Álvarez was only a few years into serving a 25-year prison term imposed in 1993 for the murder. However, such bizarre claims are not surprising. They seemed intended to reinforce less explicit statements made publicly by supporters of the defense to the extent that the prosecution has framed the three accused through buying testimony. To the knowledge and information of the Lawyers Committee, none of the three accused, who had ample access to the press throughout the proceedings, attempted to distance themselves from Beteta Álvarez’s statements, and to the contrary the defense referred to this testimony in closing arguments.

81

Helen Mack states that she has never offered Beteta drugs, money or assistance in gaining exile. Fundación Myrna Mack, “Caso Myrna Mack: Ex-sargento del ejército aceptó haber grabado entrevistas en las cuales admite el asesinato de Myrna Mack,” September 17, 2002, on file with Lawyers Committee for Human Rights.

47

In the part of the trial in which the parties can call for introduction of new evidence (discussed above), the new evidence that the defense sought to introduce would have buttressed Beteta Álvarez’s claims by addressing the likelihood he was under the influence of drugs and the impact this might have had on him when he made his taped admissions. For example, the defense sought to call a forensic psychiatrist who could testify to Beteta Álvarez’s likely state of mind when making those admissions, if, as he claimed in court, he was under the influence of drugs. They also sought to introduce new video evidence and documents of their own, including a tape of a 2001 interview with Beteta Álvarez.82 As indicated above, the court rejected the introduction of this new evidence, just as it rejected new evidence the prosecution sought to introduce. The Lawyers Committee considers that the defense was not prejudiced by this decision. We take this position not for the simple reason that the court treated the prosecution equally, but rather because further discussion of the tapes did not add significantly to the defense. In closing argument, Godoy Gaitán’s lawyer focused primarily on questioning the testimony of prosecution witnesses. He stated that the Doctrine of National Security sought to provide the country with political, economic, and social stability, and that the account of the Peruvian military expert (Colonel Pino) did not apply to Guatemala. He discussed briefly the chain of command, indicating there were more levels in the chain of command between Beteta Álvarez and the EMP leadership than the prosecution suggested. He argued that the prosecution had failed to prove that the EMP carried out surveillance, and reiterated the old claim of its limited functions. He claimed that Beteta Álvarez had made his 1994 jailhouse admissions in return for money to get out of the country and for drugs. He closed with a petition for acquittal for his client. Counsel for Valencia Osorio echoed many of these themes, particularly as regards the taped evidence. He suggested that the video and audio cassettes should not be considered evidence, since the person purportedly making the recorded admissions had denied them in court. Counsel argued that the prosecution knew that these video and audio recordings were fabricated, and for this reason the prosecution did not even call Beteta Álvarez to back up what he said in the video. Moreover, the tapes were filled with leading questions, there was no opportunity to cross-examine, and Beteta Álvarez later denied his recorded statements. Accordingly, counsel suggested, the judges should not give the tapes probative value. He concluded that just as Myrna Mack’s daughter has been affected by the murder, so also have the sons and daughters of the three accused been affected by the entire criminal process. Oliva Carrera’s lawyer repeated many of the issues raised by his colleagues. He stated that the prosecution had failed to prove that the EMP carried out military intelligence operations, that the declassified U.S. government documents were just observations, not final conclusions, and repeated his earlier protests that large sections of those documents had been redacted. He wondered aloud if the redacted sections somehow compromised the U.S. itself. The attorney’s personal attacks on the private accuser’s credibility included a statement suggesting that Helen Mack had reacted oddly while Beteta Álvarez testified that he had spoken on the tapes under the influence of 82

Anticipating this, the Public Prosecutor also sought to call their own psychiatrist to prepare an expert analysis of Beteta’s state of mind at the time he made the admissions.

48

drugs provided by her. Later, referring to the case before the Inter-American Commission on Human Rights, counsel suggested that, rather than contacting the Inter-American Commission, Helen should have been worrying about her sister on the day of the killing.83

83

In fact, Helen Mack did not contact the commission on that day, and the initial contact was established by a Washington, D.C.-based organization.

49

VI.

AN ASSESSMENT OF THE VERDICT

Most of the text of the written decision, which occupies 36 single-spaced pages, is a summary of the witness testimony, bracketed by general conclusions at the beginning and a brief analysis at the end. The decision indicates that the judges gave “probative value” to most of the testimony and documentary and taped evidence. The majority gave particular weight to the testimony of Jorge Lemus Alvarado (El Buky) and his video and audio tapes of Beteta Álvarez’s jail-house admissions, and stated that Beteta Álvarez’s explanation for statements about which Lemus Alvarado testified were not persuasive. The majority relied on Lemus Alvarado’s testimony and his taped interviews to conclude that that the direct order to kill Myrna Mack came from Valencia Osorio. In their decision, the judges found that the crime was in fact one of murder, and mentioned not only its premeditated nature, but also the subsequent cover-up, including the murder of an investigator. The decision ends with specifics on the legal responsibility of the accused, the legal definition of the crime, and the sentence. Perhaps as important as the conviction itself is the fact that the decision accepts the major tenets of the prosecution’s case, including the fact that Myrna Mack was the victim of an armed forces operation carried out for political motives. The majority found that Myrna Mack had been categorized as an internal enemy and had been subjected to surveillance, and that a non-commissioned officer then assigned to the EMP carried out the murder. Even the dissenting judge accepted that the murder was an operation of the armed forces. He differed from the majority only on the issue as to whether the EMP was the unit that carried it out, stating that the army committed the murder, not the EMP: “In the trial it has been shown that it was the Army that planned the murder of the anthropologist Myrna Mack, although the accused did not at the time represent the institution.”84 Accordingly, there was a unanimous finding that Myrna Mack’s killing was an institutional crime, carried out by the state. The written decision of the majority demonstrates the same even-handed competence that the court showed in its management of the proceedings. Although the views of the Lawyers Committee differ in part with the arguments in the judgment itself, we consider that the judgment was credible, in contrast to the trials in other human rights cases such as the Xamán case,85 where international observers found the judicial reasoning applied by the trial court failed to meet minimum national and international legal standards.

84

Reporters taping the proceedings later quoted Judge Chin stating that it was the army that planned the murder, and that the accused did not represent the army at that time. (“En el juicio ha quedado demostrado que fue el Ejército quien planificó el asesinato de la antropóloga Myrna Mack, aunque los procesados no representaban en esa época a la institución,” trial coverage in Prensa Libre, October 4, 2002.) 85 See discussion of the Xamán case above.

50

In spite of the majority finding that the resources of the EMP were used in carrying out the crime, the court acquitted Godoy Gaitán, even though he was the head of the EMP at the time of the crime’s commission, on the basis that there existed a reasonable doubt as to his involvement.86 There appear to have been two sources of this doubt. First, unlike the dissenting judge, the majority was persuaded by the prosecution that the three accused were senior serving army commanders heading an army unit—the EMP. However, the majority judgment proceeded to argue that as the EMP formed part of the armed forces, the army may have had control over some EMP officials—thus accepting precisely the substantive defense that defense counsel failed to advance. The majority stated that it was accordingly not completely proven that the plan to assassinate Myrna Mack originated within the EMP itself, raising reasonable doubt about the guilt of its head, Godoy Gaitán. As regards criminal responsibility of the defendant Edgar Augusto Godoy Gaitán, it is important to determine if indeed it is certain that in the chain of command within the EMP he is the Chief of said institution. Also, it has not been totally proven that the plan of execution of which we have spoken would have been conceived at the level of the EMP, and on that point it suffices to recall what was stated several times: that this institution was part of the Defense Ministry, which at that historical moment in which the execution of Myrna Elizabeth Mack Chang took place, the power was totally divided, according to the expert Hector Roberto Rosada Granados and by the very Vinicio Cerezo Arevalo who was Constitutional President of the Guatemalan Republic, and the army, via the Department of Presidential Security (DSP) had authority over the officials who worked there.87

Second, even though Beteta Álvarez implicated Godoy Gaitán in Lemus Alvarado’s tape, the judges felt that Lemus Alvarado induced this statement, while the implication of Valencia Osorio seemed more spontaneous. Oliva Carrera, for his part, was acquitted on the ground that, even though he was linked to Valencia Osorio in the chain of command, it is possible that Valencia Osorio by-passed him by giving the order directly to Beteta Álvarez. Furthermore in the taped admissions, Beteta Álvarez himself said Oliva Carrera was not involved. Any doubt in a criminal trial must favor the accused. In its acquittals the judges raised arguments that the defense counsel did not emphasize, demonstrating even-handed application of this principle. Yet the court’s logic does not take into account the part of the 86

Article 14 of the Código Proceso Penal (CPP) states that doubt favors the accused. The actual language, taken from a copy of the text of the decision on file with the Lawyers Committee for Human Rights, reads as follows: En cuanto a la responsabilidad penal del procesado Edgar Augusto Godoy Gaitán es importante determinar, que si bien es cierto en la cadena de mando del Estado Mayor Presidencial, él es el Jefe Superior de dicha institución, también lo es que no quedó totalmente evidenciado que ese plan de ejecución del que hemos hablado hubiese sido concebido a nivel del Estado Mayor Presidencial y en este punto cabe recordar que como tantas veces se dijo, esta institución formaba parte del Ministerio de la Defensa, el cual en ese momento histórico en que se llevó a cabo la ejecución de Myrna Elizabeth Mack Chang, e poder estaba totalmente dividido según lo indicara el experto Héctor Roberto Rosada Granados y el propio Vinicio Cerezo Arévalo que se desempeñaba como Presidente Constitucional de la República de Guatemala y el ejército a través del Departamento de Seguridad Presidencial tenía dominio sobre los oficiales que ahí laboraban. 87

51

prosecution’s case which directly addresses the issue of all three defendants’ direct participation in the crime. Had the court considered this argument in more detail, it may have helped reduce the doubt which led to the acquittal of two of the defendants. For example, the testimony of expert prosecution witness Colonel Pino suggests that the operation that led to the death of Myrna Mack would have required the participation of personnel exercising distinct functions within the EMP for which each of the three accused were responsible. The court summarizes Pino’s testimony in its judgment and states that it has probative value. However, the judgment makes no mention of this testimony when explaining its acquittal of Godoy Gaitán and Oliva Carrera. This and other counterarguments relating to the chain of command and the principle of command responsibility, which would implicate all three accused and were not seriously contested by the defense, were not substantively addressed in the judgment. The majority verdict places great weight on Lemus Alvarado’s testimony— backed up by video and audio tapes—that Beteta Álvarez had stated that Valencia Osorio had ordered him to kill Myrna Mack. But the central argument of the case has from the beginning been that the murder was a carefully planned institutionally orchestrated operation defined and directed by Valencia Osorio and Oliva Carrera and approved by Godoy Gaitán in their capacities as senior commanders of the Presidential General Staff (EMP), whose illicit activities were shielded by a façade of legality. The prosecution had marshalled an impressive array of evidence which, taken together, suggested that all three accused must have played specific roles according to their respective positions in the chain of command in orchestrating the murder. The trial court did not analyze this evidence to the extent that was merited. However, the majority decision competently summarizes the testimony of the prosecution’s witnesses, and accordingly provides necessary tools for an appeal court to reconsider the outcome. VII.

POST-TRIAL DEVELOPMENTS

A. Appeals Within moments after the trial court issued its October 3, 2002 verdict, it was clear that the Mack case was far from over. For the family of the victim, the verdict only brought partial satisfaction. Lucrecia Hernández Mack, Myrna Mack’s daughter, stated on the night of the verdict: “I am partially satisfied by the verdict. I believe that there was sufficient evidence to convict all three; but this is part of a judicial process and we must move forward with available legal measures.”88 The trial had left little doubt that the murder of Myrna Mack was an official operation ordered, planned and carried out by state agents—even the dissenting judge agreed that the state had been involved in the killing. It is accordingly little surprise that Helen Mack announced her intention to appeal the acquittals on October 4.89 She and the public prosecutors subsequently filed separate appeals of the two acquittals on October 16, 2002. For his part Juan Valencia

88 89

“Satisfacción a medias,” Siglo Veintiuno, October 4, 2002. “Apelarán la sentencia-Seguirán adelante,” Prensa Libre, October 5, 2002.

52

Osorio’s lawyer also announced on October 4, his client’s intention to appeal his conviction and filed appeal papers on October 15, 2002. 90 Neither the outcome nor the timing of the appeal process can be predicted. Under Article 419 of Guatemala’s Code of Criminal Procedure, appeals of trial court verdicts must focus on legal issues—i.e. incorrect application or interpretation of the law, or failure to properly apply the law to the facts as found by the trial court. A successful appeal on substantive grounds leads to a change in the result (a conviction changed to an acquittal or vice versa) without the need for a new trial. Accordingly, if the prosecution, which appealed only on substantive grounds, is successful, then one or two convictions will be substituted by the appeal court for the either or both acquittals. In their appeal briefs Helen Mack and the public prosecutors argued that the trial court should have found the two acquitted defendants guilty of the murder based on the facts as the trial court found them. They argued that taking into account all of the trial court’s own findings of fact, a correct application of substantive Guatemalan law should have led to convictions of both Godoy Gaitán and Oliva Carrera. Juan Valencia Osorio appealed his conviction on both substantive and procedural grounds. The substantive part of his appeal is likely to be that, on the facts as the trial court found them, there was not sufficient basis for a finding of criminal wrongdoing that would lead to a murder conviction. If this part of his appeal is successful, an acquittal will be substituted for the conviction by the appeal court. The procedural part of his appeal is expected to focus on the numerous reconsideration motions interposed by the defense throughout the trial, which, as discussed above, were the focus of much of the defense case. Appeals on procedural grounds allege that procedural laws are not properly observed or applied. Under Guatemalan law, the mere existence of an irregularity is not in itself grounds for overturning the conviction. Accordingly, appeal courts may allow such procedural appeals only if the procedural irregularity affects the outcome of the trial. If the convicted defendant does win his appeal on procedural grounds, then the conviction will be overturned and a new trial ordered. All three appeals were originally scheduled to be heard on December 5, 2002, before the Third Chamber of the Court of Appeals—just over two months after the trial court issued its verdict. However, while an appeal court hearing did occur as scheduled, arguments on the merits of the appeals were not heard primarily because the defense had interposed recusal motions against two of the three judges of the Chamber.91 The recusal motions, like so many other defense motions in these proceedings, were frivolous, but they had the effect of postponing the argument and rulings on the merits of the appeals. Although the motives of the defense in seeking this delay while their clients were detained is unclear, the defense may have been court-shopping, given that as a practical matter the postponement led to the case being transferred away from the Third Chamber and to the Fourth Chamber of the Court of Appeals—the same court that issued a ruling

90

“Apelarán la sentencia-Pruebas prefabicadas,” Prensa Libre, October 5, 2002. Counsel for Helen Mack had objected to irregularities in the process of the notification of the hearing, but the principal reason for the postponement was the recusal motions interposed by the defense. 91

53

overturning the conviction in the Gerardi case just weeks before.92 However, an appeal hearing to be heard before the Fourth Chamber scheduled for late February 2003 was itself postponed after the public prosecutor interposed a recusal motion of its own. At time of writing, the appeal was expected to be heard in late April 2003. Further appeals to Guatemala’s Supreme Court are expected to follow any appeal ruling, whatever its content. The grounds for appeal to the Supreme Court and remedies the Supreme Court may offer are similar to those of first level appeal. The timing of any such Supreme Court appeal is difficult to predict, particularly given that further amparo and other motions are inevitable and may bog down appeal proceedings. In the event that the acquittals are confirmed on the upcoming, first level appeal, the two acquitted defendants still in detention are expected to be released, regardless of whether or not the prosecution appeals to a higher court or interposes amparo or other motions. At time of writing all three defendants are detained in a new maximum security Boquerón prison Cuilapa, Santa Rosa. They were moved to this new location following a violent prison uprising on February 12, 2003 in the Detention Center of Zone 18 in Guatemala City, where they had been detained since the trial began.93 One of the seven inmates killed in the violence was Obdulio Villanueva, a soldier convicted in the Gerardi murder. Immediately following the riot, the defendants had been relocated to a military prison facility, raising once again concerns around military jurisdiction in the case that had been repeatedly and vigorously contested by the prosecution since civilian courts had assumed jurisdiction from military courts in 1996.94 B. Inter-American Court of Human Rights Hearing On February 18, 2003, the Inter-American Court of Human Rights, of the Organization of American States (hereafter “the Inter-American Court) initiated a threeday hearing into the case brought by Helen Mack and the Inter-American Commission on Human Rights against Guatemala for the murder of Myrna Mack and the subsequent

92

See discussion of Gerardi case above. On October 8, 2002, just five days after the Mack case verdict, the Fourth Chamber of the court of Appeals annulled the June 7, 2001 conviction of two military officials, a former body guard and a priest in the Bishop Gerardi murder case and ordered a retrial. Guatemala’s Archbishop’s office, which is pressing the case, angrily denounced the judgment, finding it to be “precipitous and irresponsible” and little more than “a concession to the enemies of peace in Guatemala.” See Comunicado of October 10, 2002, of the Oficina de Derechos Humanos del Arzobispado de Guatemala, beginning with the phrase “El Vicario General del Arzobispado de Guatemala, ante la opinión pública, nacional e internacional,” at (accessed January 2003). Guatemala’s Supreme Court later reversed the appeal’s court ruling. 93 Along with Captain Byron Lima Oliva, serving a 30-year sentence for the Gerardi murder, the three defendants are currently the only inmates in the new prison. See “Una cárcel exclusiva para cuatro militares: Vinculados a casos Gerardi y Mack son los únicos reclusos de El Boquerón,” Prensa Libre, 25 February 2003. 94 “Helen Mack exige el retorno de militares a una cárcel civil,” Mack Foundation bulletin, February 12 2003. Accessed at http://www.myrnamack.org.gt/noticias_traslado_ilegal.htm on March 19 2003.

54

denial of justice in the case. The Inter-American Court, which sits in Costa Rica, is expected to issue a ruling in the case later this year. The road to the Inter-American Court began in 1991, when it had become clear that the Guatemalan justice system was failing to live up to its obligations to vigorously investigate and prosecute the Mack case. At that time, Helen Mack sought the support of the Lawyers Committee for Human Rights to petition the Inter-American Commission on Human Rights (hereafter “the Commission”).95 The petitioners sought relief for violations of Guatemala’s obligations under the American Convention on Human Rights, including the violation of Myrna Mack’s right to have her life and personal integrity respected, and the right to prompt and effective judicial recourse for violation of fundamental rights.96 In March 1996, the Commission declared the petition admissible, even though complainants are normally required to exhaust remedies in domestic courts before international human rights bodies such as the Commission will entertain complaints. The Commission found that delays and obstacles so compromised Helen Mack's ability to obtain effective access to a remedy that this exhaustion requirement was inapplicable to the case.97 Shortly after that ruling—in June 1996—a Guatemalan judge charged the three defendants, helping pave the way for the domestic trial that ultimately occurred. In spite of the Commission’s admissibility ruling and ongoing tireless efforts of Helen Mack, the prosecution of the three alleged intellectual authors repeatedly bogged down or was set back. Accordingly, in early March 2000 Helen Mack and the Lawyers Committee requested that the Commission elevate the case to the binding jurisdiction of the Costa Rica -based Inter-American Court, further raising the stakes for Guatemala. Guatemala’s government then moved quickly to promise progress at the domestic level. At a joint press conference held with the Commission on March 7, 2000 in Washington, D.C., government representatives acknowledged that the state bore responsibility in the Mack case and a host of other human rights cases. This unprecedented admission, made by Guatemala's Portillo administration, which had recently been inaugurated, appeared to reverse a long-standing government posture of ignoring or denying state responsibility for the atrocities committed during Guatemala's civil war. Indeed, Guatemalan government representatives agreed to a specific timetable for progress in the Mack case domestic proceedings. The Commission appointed two observers to monitor and report on the extent of Guatemala’s fulfillment of this commitment.

95

The Inter-American Commission and Inter-American Court are two organs set up by the Organization of American States to ensure the implementation of the American Convention on Human Rights in the states parties to that treaty. Individuals may petition the Commission with complaints of violations of their rights under the Convention and the Commission may subsequently refer such cases to the Inter-American Court. See American Convention on Human Rights, articles 44, 46, 47, 48, 49, 50, 51. 96 The U.S.-based Guatemala Human Rights Commission filed the original petition with the Commission on September 12, 1990, one day after the murder, but the Lawyers Committee for Human Rights and Georgetown University became co-petitioners in the case in 1991. 97 Annual Report of the Inter-American Commission on Human Rights, Report No. 10/96 on Admissibility, Case 10.636, Guatemala, March 5, 1996 [sic].

55

While a welcome change from past intransigence, this new attitude was not borne out by action. Instead, a pattern of inconsistent behavior around the Mack case emerged from a government administration that was seeking to avoid a condemnatory international court ruling in a major human rights case without taking the steps needed to repair the damage done to the domestic prosecution and fully answer on behalf of the Guatemalan state for the murder, subsequent cover-up, and other obstacles to justice detailed in this report. The government failed to fulfill its commitments, leading Helen Mack to revive her request to the Commission to elevate the case to the Inter-American Court. In March 2001, the Commission issued a confidential “Article 50” report, detailing its findings and conclusions in the case, which were that the government was in contravention of its obligations under the American Convention on Human Rights. Thereafter, the Commission submitted the case to the Inter-American Court and on July 30, 2001, the Lawyers Committee was officially notified by the Inter-American Court that it had received the petition from the Commission. Once again, this milestone in the international case against Guatemala was followed by apparent progress in the domestic prosecution as a trial date was quickly set for October 10, 2001. However, as discussed above, that trial was postponed due to one of many frivolous defense motions, and the international litigation proceeded. Only when it became clear that a hearing on the merits of the case against the state of Guatemala before the Inter-American Court was at hand did the domestic case inch forward again, ultimately culminating in the trial of the suspected intellectual authors of the murder in September 2002. As discussed in this report, the trial in Guatemala left much unresolved in the case, including the need to ensure that the progress that was achieved at trial is not lost as the case proceeds to appeal level. Furthermore, additional investigation of both Myrna Mack’s murder and the cover-up of official involvement in the murder is still required, as is the release of official documents that could shed further light on the crime and that defense department and other authorities continue to withhold in spite of a judicial order for their release. Other relief sought by the victim’s family includes a formal apology, the dissolution of the EMP, monitoring of the ongoing domestic appeals process by the InterAmerican Court, and damages. The Mack case was the first case admitted to the Inter-American Court under new regulations permitting victims and next of kin formal standing before the Court throughout the process. Prior to the implementation of the new regulations, only the Inter-American Commission had such standing.98 The petitioners before the Court were accordingly both the Inter-American Commission and the next of kin. Helen Mack and Lucrecia Hernández Mack, the victim’s daughter, speak for the next of kin, who are represented by Hogan & Hartson L.L.P., the Center for Justice and International Law, Argentinean lawyer Alberto Bovino, and the Lawyers Committee for Human Rights. Counsel for the petitioners presented thirteen witnesses during Court proceedings on February 18 and 19, 2003. In testimony before the Court on February 18, Monsignor Julio Cabrera, a key prosecution witness at the domestic trial, discussed Myrna Mack’s 98

Although the Mack case was the first admitted under the new regulations, other cases actually proceeded under the new regulations prior to the Mack hearing.

56

research and evidence that she was followed prior to her death. Virgilio Rodríguez Santana, the former newspaper vendor who was also a prosecution witness at trial, testified about government surveillance of Mack, as well as to the death threats and harassment that forced him to flee Guatemala.; Lucrecia Hernández Mack testified about the harm she has suffered as a result of her mother’s death; and Helen Mack spoke about the state’s institutional responsibility for the murder, the subsequent denial of justice, and death threats and attacks that have surrounded those involved in seeking justice in the case in Guatemala. On February 19, nine petitioner witnesses and experts were heard, regarding the obstruction of the investigation into Myrna Mack’s death; the involvement of the Guatemalan intelligence agencies, specifically the EMP; massive procedural delays that have plagued the case against those responsible for ordering the crime; and the psychological harm done to the Mack family due to Myrna Mack’s death and the denial of justice that has followed it. On February 20, the final day of hearings, the petitioners and the Commission gave closing arguments, arguing that Guatemala had violated the right to life of Myrna Mack by permitting military agents to plan and execute her murder; had violated the family’s right to fair trial and judicial protection by obstructing justice; and had permitted the continuing threats and harassment of the family and their supporters. Counsel for Helen Mack also petitioned the Inter-American Court to order Guatemala to continue to take measures to protect Helen Mack, her family, and others involved in the case, as had been ordered by the Inter-American Court prior to the domestic trial, by resolution of August 26, 2002.99 On February 21, 2003 the InterAmerican Court issued a resolution containing such an order.100 The Guatemalan government, for its part, sidestepped the substantive issues raised by the petitioners. Its representatives instead focused on communicating to the InterAmerican Court its intention to accept of the petitioners’ claims on the merits as provided under Article 52(2) of the Regulations of the Inter-American Court.101 This provision permits the respondent party—in this case the Guatemalan government—to communicate its acceptance of the petitioners’ allegations, after which the hearing on the merits is bypassed and the Court proceeds to hear and rule exclusively on the issue of reparations.102 However, at the time of writing this report, the Guatemalan government has yet to unequivocally accept the full scope of the petitioners’ position on the merits, which includes a comprehensive account of the institutional nature of the murder and subsequent cover-up. To date, both the Commission and the Mack family have found the extent of the government’s admissions inadequate, due to its vague and contradictory content as well as to the State’s history of acknowledgements later withdrawn or “reinterpreted.” The Lawyers Committee believes that Guatemala’s inconsistency before 99

The August 26, 2002 Court order is cited above in IV(B)(ii) – “Intimidation of the Prosecution.” The February 2003 petition to the Cort extend the Court’s August 2002 order was made by Hogan &Hartson, LL.P., on behalf of Helen Mack. 100 At time of writing, this resolution had not been released to the public. 101 Reviewed at http://www.corteidh.or.cr/info_general/Indicereg.html in March 17, 2003 in March 2003.) 102 The acceptance of the petitioners’ allegations by the respondent, known as allanamiento, is normally arranged prior to the hearing on the merits.

57

the Commission following its March 2000 admission and later before the Inter-American Court, as detailed below, reflects its still only tentative political will to achieve justice in this case.103 •

In a February 14, 2003 communication to the Inter-American Court, the government of Guatemala stated its resolve to “maintain and reiterate” the March 2000 acceptance of responsibility in the case made before the Inter-American Commission. On February 17, 2003, the Court provided a copy of this communication to the petitioners and requested a response the same day. Both the Commission and the next of kin rejected Guatemala’s position as insufficient and requested the Court to proceed with hearing the merits of the case.

•

On Tuesday, February 18, 2003, the Inter-American Court decided to proceed with the hearing on the merits. In reasons later released to the public,104 the Court ruled that the hearing on the merits should proceed as scheduled due to the fact that the extent of the state’s acceptance of responsibility in both fact and law remained at issue.

•

When the hearing proceeded, the Guatemalan government declined to call witnesses or examine those called by the petitioners, while both the petitioners and judges of the Inter-American Court questioned the witnesses. Furthermore, in an unprecedented move, the government representatives walked out of the court room on the second day of hearings, leaving the petitioners to continue to present testimony without the presence of these representatives, who returned on the final day of the hearing to present closing arguments.

•

In closing arguments on February 20, government representatives argued that Guatemala had already stipulated to certain facts in the case while admitting international responsibility for the denial of justice, but that there were facts it would not comment on whilst they were still the subject of domestic proceedings in Guatemala. According to observers, when asked specifically by a member of the panel of Inter-American Court judges if this statement constituted an official acknowledgement of responsibility by the state, representatives did not directly respond.

•

By letter of February 24, 2003, Guatemala’s foreign minister, Edgar Gutiérrez, sent another communication to the Inter-American Court, disapproving of the conduct of his own government representatives at the hearing, and claiming to expand the reach of Guatemala’s acceptance of responsibility in the case beyond what it stated at the

103

See “Guatemala: State Abandons its Defense in Inter-American Court Hearing on Mack case,” February 25, 2003 Media Alert, Lawyers Committee for Human Rights. (Accessed at http://www.lchr.org/media/2003_alerts/0225.htm in March 2003.) 104 There is a link to the ruling (in Spanish) on the Inter-American Court’s web site at http://www.corteidh.or.cr/mackCahng.doc [sic]. (Accessed in March 2003.)

58

beginning of hearing. He also requested a “personal interview” with members of the Inter-American Court to explain the error.105 •

On March 3, Foreign Minister Gutiérrez announced he was meeting with the President and two judges of the Inter-American Court to clarify the true extent of the admission of responsibility in the case.

The petitioners have called on the Inter-American Court to reject Guatemala’s alleged acceptance of responsibility and proceed to rule on the merits as well as reparations. Barring a prior approval by the Court of Guatemala’s alleged acceptance of the petitioners’ position, the Court is expected to issue a final ruling on both merits and reparations in the late summer or fall. In the event Guatemala eventually does issue an adequate acceptance of the petitioners’ position on the merits, the Court is expected to rule exclusively on the reparations.

105

February 24, 2003 letter from Edgar Gutiérrez, Minister of Foreign Affairs, Guatemala, to the InterAmerican Court of Human Rights, on file with the Lawyers Committee for Human Rights.

59

VIII. CONCLUSIONS AND RECOMMENDATIONS The Myrna Mack murder trial made history in Guatemala. This was the first time that senior military officials were brought to trial or convicted for human rights violations committed during the civil war. Furthermore, the trial has shone a bright light on the state policy that led to Myrna Mack’s murder, as extensive evidence of illegal state activity over a long period of Guatemalan history became a matter of court record. In spite of these important advances, the trial itself was a case of justice constrained as well as justice delayed. While the trial proceedings inside the courtroom unfolded mostly in a credible manner, judges, prosecutors, prosecutorial witnesses, and others linked to the prosecution were obliged to carry out their roles in the face of unacceptable pressures. Those who would subvert justice in order to continue the impunity that still shields most perpetrators of serious human rights violations in Guatemala were unstinting in their efforts to derail the process. The threats, the intimidation, and the realization that a key piece of documentary evidence had been lost before reaching the trial court, blemished the trial, representing the latest dreary chapter in a lengthy tale of attacks, threats, and irregularities that have characterized this case from the moment the murder occurred over twelve years ago. The trial itself could neither compensate for the lengthy delay in bringing the case to justice nor heal the damage wrought by what for twelve years has been a deeply flawed process. While important milestones, the trial and conviction do not bring closure to the case. First, the intimidating atmosphere and flawed pre-trial process leave doubt as to whether a trial without these impediments might have led to a different result, including one or more other convictions.106 Secondly, even what progress was achieved at trial could all but vanish. If Colonel Valencia Osorio’s appeal is allowed, the likely result would be an annulment of the conviction and a retrial order, which in turn would require Helen Mack and all those linked to the prosecution to once again pursue arduous legal battles in the same intimidating atmosphere that has characterized proceedings from the beginning. In a national context in which judges are notoriously subjected to pressure, there is no guarantee that an appeals courts will act with the impartiality displayed by the trial court majority. Indeed, the Mack case appeals are slated to be heard by an appeals court which recently issued a controversial judgment overturning four convictions and ordering a retrial in the Bishop Gerardi murder case, one of the very few other human rights cases in Guatemala to lead to convictions at trial. The trial and conviction are unprecedented: Impunity remains the norm for the vast majority of human rights violations carried out by the state. The conviction of Colonel Valencia Osorio was achieved only at enormous cost, including the life of police investigator José Miguel Mérida Escobar, the many instances of threats and intimidation targeted at investigators, judges, prosecutors, particular witnesses and the Mack family, 106

Helen Mack and the office of the public prosecutor were unsatisfied with the rationales for the acquittals and have appealed them.

60

and twelve years of undivided commitment on the part of Helen Mack in pursuit of justice. Even with all this personal sacrifice, the case would not have gone to trial had Guatemala not been spurred to action by international legal proceedings before the InterAmerican Commission and Inter-American Court of Human Rights. In addition, the prosecution of the intellectual authors of the crime would likely have not been successful were it not for the creation and activity of the Myrna Mack Foundation to support the private accuser, Helen Mack, in carrying out many prosecutorial and investigative functions that the office of the public prosecutor at various times has been unable to carry out. The extent of sacrifice and resources needed to take such a case forward shows that much remains to be done before the comprehensive impunity that persists in Guatemala is ended. In spite of government actions to strengthen the administration of justice, U.N. Special Representative Hina Jilani observed in 2002 that “there is almost total de facto impunity for violations of human rights.” 107 In short, the Mack trial case does not signal the end of that near total impunity; to the contrary, it shows that the extent of obstacles still facing those seeking redress for rights violations in Guatemala. To make justice for human rights violations a reality in Guatemala, both political will and resources will need to be marshaled to remove the atmosphere of intimidation that accompanies any attempt to pursue justice through the legal system. Guatemala’s political leadership continues to bear responsibility not only for ensuring the safety of the litigants, witnesses, and judges, but also for removing the enormous obstacles to justice for other victims of gross human rights violations that clearly remain. A twelve year legal battle in the face of threats and intimidation cannot be the norm for Guatemalans in years to come who seek justice when the state kills. Accordingly, the Lawyers Committee recommends that the Guatemalan government undertake the following measures in order to help consolidate the progress represented by the Mack case in the search for justice for human rights violations. Such measures would help ensure not only that future judicial proceedings in the Mack case are impartial, but also create an environment in which human rights accountability cases in general face fewer obstacles—an initiative requiring addressing some of the basic challenges still afflicting Guatemalan justice.

Lawyers Committee Recommendations to the Government of Guatemala: 1. Reverse the 2002 budget cuts to government bodies that administer and pursue justice, including the Public Ministry, the Human Rights Ombudsman, and the judicial branch. Adequate funding for such bodies should be ensured for the future. 2. Efforts to ensure the integrity of prosecutions for human rights abuses should be reinforced and measures to prevent and punish those responsible for threats 107

United Nations, Economic and Social Council, Report by Ms Hina Jilani, Special Representative of the Secretary-General on the situation of human rights defenders, submitted pursuant to Commission on Human Rights resolution 2000/61to the Commission, E/CN.4/2003/104/Add.2, 6 December 2002, ¶ 63.

61

against judges, prosecutors, and lawyers involved in such prosecutions should be taken. Efforts to investigate, prosecute, and punish those responsible for threats, attacks and intimidation of rights defenders, judges, and prosecutors should be reinvigorated. 3. Guatemala’s high-level Security and Human Rights Cabinet should demonstrate resolve by ensuring that all necessary measures for the protection of rights defenders are implemented. State officials have set up many bodies in recent years to deal with these and related concerns, including the: - Judicial Security Unit of the Supreme Court; - Office of the Special Prosecutor for Threats and Intimidation against Judges, Prosecutors and Lawyers; and the - Special Prosecutor to Investigate Violations against Human Rights Defenders All of these bodies should be provided with the tools required to fulfill their respective mandates, and appropriate measures should be taken to ensure the safety of those that lead and staff these offices. In this respect Guatemala should pay particular heed to the recommendation of Ms Hina Jilani, Special Representative of the Secretary-General on the situation of human rights defenders, that such bodies “are provided with the human and financial resources and the independence necessary to carry out their work effectively” and that they work in a coordinated fashion.108 4. Guatemala should vigorously follow through on its March 13, 2003 commitment to support the establishment of the Comisión para la Investigación de Cuerpos Ilegales y Aparatos Clandestinos de Seguridad (CICIACS), an international commission that would investigate acts of intimidation against human rights activists in Guatemala and the existence of illegal armed groups that appear to have been responsible for them. 5. Generally, Guatemala should expedite fulfillment of its commitments to dissolve the Estado Mayor Presidencial (EMP) and to complete the reform of its intelligence system as contemplated in the Peace Accords. It should also comply with all outstanding recommendations related to strengthening the justice system issued by the United Nations Verification Mission in Guatemala and by the United Nations Special Rapporteur on the Independence of Judges and Lawyers. With regard to the Mack trial in particular: 1. The Guatemalan government should investigate and prosecute all threats and attacks that occurred in the run-up to and during the trial itself. Furthermore, the government should take all necessary measures to provide ongoing protection for the Mack family, their attorneys, prosecutors, witnesses, and others involved in the prosecution of the crime, as ordered by the Inter-American Court of Human 108

United Nations, Economic and Social Council, Report by Ms Hina Jilani, December 6, 2002, para. 102.

62

Rights both prior to the beginning of the domestic trial in September 2002 and following its hearing of the international trial of Guatemala in February 2003. 2. The Guatemalan government should undertake a thorough review of courtroom security measures to ensure that there were no breaches of security during the domestic trial. In particular, there should be a thorough investigation of allegations that small arms were smuggled into the courtroom during the closing days of the trial, and any criminal behavior in this respect should be investigated and prosecuted. Whatever the results of the judicial proceedings in the Mack case in years to come, there is still much unfinished business to be addressed before it can be considered settled. Accordingly, Guatemala should satisfy the following demands now being considered by the Inter-American Court of Human Rights: 3. Guatemala should fully acknowledge the responsibility of state institutions in the murder and lengthy delay in bringing the case to trial, and publicly apologize for both. In particular, it should unequivocally accept the full scope of the petitioners’ position on the merits in the case before the Inter-American Court, which includes a comprehensive account of the institutional nature of the murder and subsequent cover-up. 4. Guatemala should fulfill its March 2000 commitment, made under the auspices of the Inter-American Commission on Human Rights, to investigate and prosecute state officials responsible for incidents of obstruction of justice in this case, such as failure to produce official documents requested for use in the proceedings. 5. Guatemala should make reparations to the Mack family for damages suffered as a result of the death of Myrna Mack, and compensate the Mack family and their representatives for costs and expenses incurred in their long search for justice. 6. Guatemala should promptly and fully comply with all orders issued upon final resolution of the case currently before the Inter-American Court of Human Rights.

63

XI.

APPENDICES Appendix One SUMMARY AND HIGHLIGHTS OF WITNESS TESTIMONY109

September 5, 2002 The prosecution called eye witness Clara Arenas, who directs the Guatemala City research institute AVANCSO where Myrna Mack was working when she was killed. Arenas stated that Mack was not only being monitored by unknown persons, but also that her worked touched on issues of interest to the government and particularly the army, which sought to keep the existence, as well as the desperate plight of the populations Myrna Mack was researching out of the public eye. Following Arenas’ opening statement, Public Prosecutor Tatiana Morales examined her, drawing out the importance of Myrna Mack’s professional work as motive for the crime. Arenas responded that Mack’s work exposed the existence of a population, the plight of which was unknown in Guatemalan society at the time. The army sought to control this population and benefited from the lack of knowledge. The following is part of the exchange between Lic. Morales and the witness: MORALES Witness, do you have knowledge or are you aware of whether the Guatemalan Armed Forces had an interest in the issue of displaced populations in the late 1980s and early 1990s? ARENAS What I am aware of comes from the research that Myrna Mack undertook. From that research, what I am aware of is that it was a population that was suffering persecution by the army and that it was a population whose status was not widely known in Guatemala. While the existence of this population was not widely known, it was known to the Army…. It was a population the Army sought to control and over which it sought to have power….This is the connection I make and this is what I can say about the interest the Army could have in this population…. I also understand that we were seeing a desire that the existence of this population would remain unknown.110 109

Summary of witness testimony, roughly translated from the unofficial transcript of the trial proceedings on file with the Mack Foundation. 110 MORALES Señora testigo, tiene usted conocimiento o le consta si el Ejército de Guatemala tenía algún interés sobre el tema de los desplazados en el año o los años ochenta y principios de los noventa? ARENAS A mí, lo que me consta, digamos viene de la investigación que conducía Myrna Mack, y en ese sentido lo que me consta es que esta era una población que estaba siendo, sufriendo persecución por parte del Ejército

64

Helen Mack’s attorney Claudia Gonzalez then asked Arenas about the nature of AVANCSO. In response, Arenas explained it was established to carry out research on the problems of ordinary Guatemalans, to strengthen the social sciences in Guatemala, and to educate young researchers. Myrna Mack’s research on the displaced was financed by Georgetown University, and her research on re-integration of displaced communities was financed by the Ford Foundation. Arenas said that the Guatemalan authorities had been aware of AVANCSO’s work. Arenas stated that unlike in El Salvador, where there were many researchers focusing on displaced populations, no one in Guatemala was doing this work except Myrna Mack. In de-briefing sessions, Mack spoke about persecution and control of, and use of terror against the communities in which she was carrying out her research. She designed a solid methodology to analyze the issue, and thanks to her work it gained political status as a problem that needed to be addressed at a national level. GONZÁLEZ You mentioned that Myrna Mack became a specialist and a pioneer on the issue of the displaced. Why do you say that she was a specialist or pioneer on this issue? ARENAS Because at that time there was no known work about the issue of displacement or about the internally displaced in Guatemala. I would have to say that of course there was such work going on in El Salvador, but in Guatemala there was no work going on about this population. No one knew even about its existence and for that reason I say Myrna did pioneering work, because it was thanks to her work that that the displaced population had a status, a specific category as a sector that had a specific dynamic in Guatemala. This is the reason I say that her work is pioneering and that she could be and was seen as a specialist, and as well I say that because of the field work methodology she used, in conditions that were not the easiest to manage, in her field work she managed to design a methodology that allowed her to approach and see by way of those communities what they were living through.111 y que era una población cuyo estatus no se conocía en Guatemala ampliamente, eran entonces una población de cuya existencia no se conocía, pero de cuya existencia si sabía el Ejército, y de lo que yo entendía del trabajo de Myrna Mack. Esto la hacía una población que el Ejército quería controlar y sobre la que quería tener entonces poder, de manera que esa es la relación que yo hago y lo que puedo decir sobre el interés que el Ejército podía tener en esta población. Yo pensaría a partir de esa información que si tenía un interés, que era un interés de control sobre esa población por un lado y lo que yo entendía es que también estábamos viendo una intención de que no se supiera de que existía esta población. 111 GONZÁLEZ Usted mencionó que Myrna Mack se convirtió en especialista y pionera en el tema de desplazados, por qué dice que ella era una especialista o pionera en este tema? ARENAS Bueno, porque en aquel momento no existían trabajos conocidos sobre el tema del desplazamiento y los desplazados internos en Guatemala, yo creo que sí habría que decir, que por supuesto en El Salvador había trabajo sobre desplazados, pero en Guatemala no había ningún trabajo sobre esta población, no se sabía incluso de su existencia y entonces yo digo que Myrna hizo un trabajo pionero, porque fue gracias al trabajo de ella que la población desplazada interna tuvo un estatus, una categoría específica como un sector que tiene una problemática específica en Guatemala, entonces esa es la razón por la que yo digo que su trabajo es pionero y que ella podría y fue vista como especialista, y también lo digo por la metodología de trabajo de campo que Myrna utilizó, que en medio de condiciones que pues no son las más fáciles de

65

On cross-examination, the defense sought to establish that there was no motive for the EMP leadership to murder Myrna Mack. Godoy Gaitán’s lawyer, Efrén Leche, and the witness had the following exchange: LECHE Did the work of anthropologist Myrna Mack affect the EMP? ARENAS Here we will always have a formal answer and an answer that, shall we day, is a factual one. I would say that formally, it should not have affected the EMP. But what you eventually learn is that there are interconnections between some units and others. So my answer is that this work should have not have affected the EMP. But I do think that it could well have affected an army that still was closed at this time to possibilities of understanding development and indeed security too, in a different way. Remember we are in a moment of still unresolved armed conflict. That is how I would answer your question. LECHE Perhaps I can be more concrete in my question. Did Myrna Mack’s work affect the personal security of the President of the Republic, in this case Vinicio Cerezo? ARENAS I would say the answer is no.112 *** Monsignor Julio Cabrera, Bishop from 1987 to 2002 in the conflict-ridden Quiché region where Myrna Mack undertook her research and who saw her several times just before her murder, was the prosecution’s next witness. He was well aware of the situation of displaced persons in his parish, the politics surrounding it, and Myrna Mack’s role in researching what was happening there. His stirring testimony concluded with the manejar en el trabajo de campo logró diseñar una metodología que le permitía acercarse y ver a través de comunidades buscadas específicamente la problemática que estaba viendo. 112 LECHE ¿Atentaba el trabajo de la antropóloga Myrna Mack al Estado Mayor Presidencial? ARENAS Yo allí tendría. Tenemos siempre aquí una respuesta que es formal y una respuesta que es, digamos, por los hechos mismos. Yo diría que en la formalidad de las cosas no debería afectar. Lo que uno aprende después es que hay interrelación entre unidades y demás. Así es que mi respuesta es que este trabajo no debería haber atentado. Yo creo que si a la pregunta de, contra qué podría haber estado atentado, contra un ejército que todavía esta cerrado en ese momento a las posibilidades de entender el desarrollo y si se quiere la seguridad también, de una manera diferente. Estamos en un momento de conflicto armado todavía no resuelto. Yo, diría por ese lado mi respuesta. LECHE Tal vez para ser más concreto en la pregunta. ¿El trabajo de la antropóloga Myrna Mack atentaba contra la seguridad personal del Presidente de la República, en ese caso Vinicio Cerezo?. ARENAS Yo diría que no.

66

assertion that Mack was killed because of her work with those groups who were considered by the armed forces to be potential allies of insurgents. He stated that Myrna Mack, who he knew well, was very anxious in the days prior to her murder and said that she repeatedly told him that she was being followed. He suggested that she became targeted not only because of her work in the field but also because she had become identified abroad with a workshop in which a declaration on the rights of displaced communities ((known by their Spanish acronym as CPRs) was being drawn up. Apparently Mack had received phone calls from abroad about when this declaration might be released. Monsignor Cabrera stated his belief that her phone was being monitored and the telephone conversations may have led listeners to identify her with that declaration even though she was not directly involved with it. He was of the view that telephone conversations regarding this document may have been a contributing factor to her murder. Monsignor Cabrera stated that he saw Myrna Mack as late as September 9, when she said to him “Monsignor, let’s go inside quickly, they are following me.” The Bishop ended his opening statement by testifying: I conclude that Myrna’s telephone must have been tapped and that that was what led her to be linked to this declaration. On August 18 [1990] she was followed on her trip to Quiché, and on September 7, or rather September 9, a Sunday, she is followed on her trip to Quiché, so on September 11 she is assassinated by whom? By those who felt impacted by this declaration of the CPR, this was my conclusion. And for that reason I didn’t hesitate for a moment when, upon my return to Guatemala, I went back to the military zone to say “you have killed an innocent person.113

When later asked by Valencia Osorio’s lawyer to specify exactly who he was accusing of the murder when he made this statement, Cabrera responded “I am not referring to any specific part of the Army because I am not familiar with the army’s organization. My conclusion was simply that the murder came from the army.” CASTRO So you didn’t accuse the EMP. Did anyone from President Cerezo’s security detail ever follow you? CABRERA If you were to have lived for 15 years in Quiché, going to every corner of this war-torn department, you would know that it was totally impossible to verify who was following you and who wasn’t.114 113

Yo concluyo que Myrna debió haber sido objeto de algún monitoreo de su teléfono de tal forma que a ella se le fue vinculando con la autoría de este comunicado o de esta declaración el 18 de agosto se le sigue se le persigue en su viaje al Quiché, el 7 perdón el 9 de septiembre día domingo también se le persigue en su viaje al Quiché entonces el día 11 ¿es asesinada por quién? Por quienes se vieron afectados por el comunicado de la CPR, esa fue mi conclusión y por eso yo no dude ni un solo momento en que cuando yo regresé de Guatemala pude ir a la zona militar a decir “ustedes han asesinado a una persona inocente”, este es mi testimonio, señora Jueza. 114 The full text of the exchange, including objections to the defense counsel questioning, is as follows: CASTRO

67

September 6, 2002 The prosecution’s emphasis turned to the command structures and practices of the EMP, as well as its intelligence role. The prosecution had already partially exposed the intelligence function of the accused during cross examination of them following their opening statements. Hector Alejandro Gramajo Morales, who served as Guatemala’s defense minister from 1986 until just months before the Mack murder, was called to speak further to this issue. In 1995 Gramajo published “De la guerra...a la guerra: la dificil transición política en Guatemala,” an account of the transition from military to civilian rule which occurred during his years as defense minister. He explained to the court that the “Doctrine of National Security” was a military defense doctrine based on the idea of the internal enemy. The Mack Foundation’s military expert, former Peruvian General Rodolfo Robles, questioned Gramajo for the prosecution. (At the prosecution’s request, the court permitted General Robles to carry out examination on military issues Usted dice que fue a la comandancia del Quiché y les dijo ustedes han asesinado a Myrna Mack, usted acosó a la comandancia. MELGAR Objeción lo que el dijo, era ustedes han matado una mujer inocente. PRESIDENTA Al lugar a la objeción. CASTRO Cuando usted les dijo, ¿ustedes han acusado a una mujer inocente, la hizo en la Comandancia del Quiché? MELGAR Objeción no dijo acusada, matado a una mujer inocente. PRESIDENTA Hágalo en la forma que el abogado dice que lo dijo, para que no se repita y haya excepciones. CASTRO ¿En ese momento acusaba a la Comandancia? MELGAR Objeción que Comandancia, la URN, Comandancia del Ejército, ¿qué Comandancia? PRESIDENTA Permítame un momento, se volvió como que un coloquio de dimos y diretes, hagamos una situación, le repito lo que le dije ayer, piense sus preguntas y así evitamos ese tipo de objeciones que lo único que hace es interrumpir. CASTRO Alguna vez acusó al EMP ROMERO Objeción señora presidenta, porque está pretendiendo que el testigo declare contra si mismo sindicándole que si acusó el ó no. PRESIDENTA No al lugar a la objeción, conteste el testigo. CABRERA No, yo no me refiero a una determinada parte del Ejército porque desconozco, lo digo nuevamente el tipo de organización del Ejército, sencillamente mi conclusión era que el asesinato provenía del Ejército. CASTRO ¿No acusó entonces al EMP; las personas de seguridad del presidente Cerezo lo siguieron a usted alguna vez? CABRERA Quien vivió 15 años en el Quiché yendo a todas partes de ese departamento en Conflicto Armado interno le era totalmente imposible verificar quién le seguía y quien no le seguía.

68

for the prosecution.) A lengthy technical exchange between them occurred, frequently punctuated by objections from the defense. While the witness echoed the defendants’ own testimony that orders to the EMP came exclusively from the President and not from the army, he admitted there was a “relation” between the EMP and the army, that soldiers were “loaned” by the army to the EMP, and that these soldiers did not lose their quality as military personnel while they were with the EMP. He admitted to the existence of an intelligence function within the EMP (in contradicting what the defendants had said), though he said that during the term of President Vinicio Cerezo, under whom he served, the EMP was reformed to ensure that intelligence operations were limited to concerns linked to presidential security. While he confirmed that some groups of displaced persons were considered by the army to be under guerrilla control, he insisted that under President Cerezo the EMP was not engaged in counterinsurgency. He also confirmed the existence of strict hierarchical control within the army—a point the prosecution wanted to establish in support of their argument that Beteta Álvarez must have acted under orders from the accused. ROBLES Was the Chief of the EMP responsible for all of the activities that occurred in the different units he was responsible for, and their members? GRAMAJO By doctrine, at the different levels the commander is responsible for acts or omissions of the subordinate. RODOLFO Thank you. According to information provided by the Ministry of Defense, the chief of the Department of [Presidential] Security was Juan Valencia Osorio. Was the chief of the department of presidential security responsible for all the activities that this unit undertook and its members? GRAMAJO Any chief, any commander must ensure orders are complied with, but any chief, any commander is also subject to surprises or disobedience of subordinates. But this is within the realm of practice so I would prefer not to go further, but under doctrine, this is how it works.115 115

ROBLES ¿El Jefe del Estado Mayor Presidencial, era responsable de todas las actividades que desarrollaban las diferentes dependencias a su cargo y sus integrantes? GRAMAJO Por doctrina a los diferentes niveles el comandante es responsable de lo que haga o deje de hacer el subordinado, por doctrina a diferentes niveles. ROBLES Gracias; según información dada por el Ministerio de Defensa el Jefe del Departamento de Seguridad era: Juan Valencia Osorio, en ese sentido el Jefe del Departamento de Seguridad era responsable de todas las actividades que desarrollaba la dependencia a su cargo y sus integrantes.

69

September 9, 2002 The prosecution called two expert witnesses that both helped set the context of the political situation in which Myrna was working, and described the nature of the unit that the defendants led. The first of these witnesses—Hector Rosada—rose to prominence in Guatemala both as a peace negotiator and as Guatemalan’s top scholarly authority on the country’s armed forces. In his opening statement he discussed the changing nature of the army and the exercise of military power in modern Guatemalan history, beginning in 1944. He testified that when Guatemala shifted from military to civilian rule in 1986, the nature of the exercise of military power became more complex as there were currents of resistance to civilian rule. He noted that the transfer from military to civilian rule was initiated by the military government of the early 1980s, but that the democratizing forces in the armed forces were contested by hard-line elements that had grown through the period of anti-insurgency from the early 1960s until the mid-80s. Under military rule, the EMP was strictly part of the chain of military command. But under civilian rule, which began in the mid-1980s, it took on more of a political role. There was no doubt it played a role in delivering security to the president, and as such it also carried out intelligence. Rosada suggested that the EMP’s intelligence work did not end with presidential security—that it long had a role in providing political intelligence to the commander in chief of the army. This is why, he explained, negotiators for the Peace Accords insisted on not only separating the presidential security function from the intelligence function, but also even splitting the intelligence function between intelligence examining common crime and strategic intelligence (i.e. assessing threats against the democratic state). As for the elimination of the EMP, slated under the Peace Accords to be replaced with a body strictly focused on presidential security, Rosada said the decision to replace the EMP actually pre-dated the Accords, as it was seen even then as a political liability. Under questioning by the prosecution’s military expert, General Rodolfo Robles, Rosada testified that someone in the state apparatus must have made a connection between an AVANCSO publication authored by Myrna Mack on the plight of the displaced (“Cuaderno 6”), the demand by displaced communities (CPRs) for political recognition, and Myrna’s presence in the region. A declaration issued by representatives of these communities shortly before her murder probably made Myrna Mack a counterinsurgency target. “If we are looking for a motive, I believe that this declaration could have put Myrna on a collision course with a decision to locate her in the counterinsurgency spectrum or as an objective of a counterinsurgency operation.”116

GRAMAJO: Cualquier jefe, cualquier comandante debe de hacer cumplir las órdenes y las leyes pero cualquier jefe y cualquier comandante también está sujeto a que lo sorprendan o lo desobedezcan los subalternos, eso ya es dentro de la práctica así es de que yo no quisiera extenderme más, solo que por doctrina esas son las situaciones. 116 “Si estamos buscando un móvil, yo creo que efectivamente ese comunicado pudo haber colocado a Myrna en una ruta de choque respecto a una decisión de ubicarla dentro del espectro de la contrainsurgencia o como objetivo de un operativo contrainsurgente.”

70

Rosada testified that by 1990 the political role of the military was in decline, and that the insurgency saw prospects for a greater political role even though they had been largely defeated on the battlefield. The CPRs were a fundamental concern at the time, given they were making a demand against the state. He also reminded the court that fighting was still going on, particularly in the area of the country in which Myrna Mack undertook her research. Rosada further testified that the EMP “formed part of the army.” When asked about the chain of command in the EMP, he stated that he was unable to testify to the chain of command within the Archivo and the G2—names given to secretive intelligence units within the EMP that the prosecution claims carried out dirty operations like the murder of Myrna Mack and that were run by the three accused. Rosada confirmed the existence of the G2, the fact it undertook intelligence, but could not specify how the EMP functioned in 1990. He said that the authorship of the massive human rights violations for which state forces were overwhelmingly responsible was hard to pin down. He cited the existence of “Cofradías” or parallel power structures within the armed forces that did not necessarily track the official command structures as a possible source of rights violations and was accordingly hesitant to emphatically finger the EMP as author of counterinsurgency activities He added that in the scheme of the contradiction-ridden armed forces at the time, the accused Godoy Gaitán was not one of the hard-line generals. He stated that he had no knowledge that any of the three accused was directly involved in the crime. As for the Doctrine of National Security, Rosada testified that it was official policy of the army from 1963-1982. After 1982, it was no longer official policy but it continued to be applied. When asked, he stated that it certainly did not bring “peace and development” as Valencia Osorio had argued in his opening remarks. He stated that “Myrna Mack fit completely the profile of the internal enemy for the purposes of the National Security Doctrine.”117 She was in a sensitive region, working on a sensitive topic. Of course she would have been watched, and it was likely that intelligence work was done on her. Her murder, he stated, was unquestionably a political crime. The defense once again sought to distance the EMP from the crime. Counsel for Godoy Gaitán engaged in the following exchange with the witness in cross-examination:

117

“La doctrina de la seguridad nacional en su aplicación en Guatemala si bien con ciertas diferencias respeto cuatro conceptos básicos, cuatro principios básicos considerar al estado como una entelquía, como un valor en si mismo como el valor supremo despersonificado, segundo la existencia de un enemigo interno contra ese estado en un contexto de guerra total, primero guerra total anticomunistas y posteriormente guerra total contrainsurgente, tercero la estigmatización de la política o sea la política de la antipolítica mediante la cual cualquiera que hiciera política o la hacia con migo o la hacia contra mi un poco la idea de la guerra del bien y el mal y por último trasladarle a las fuerzas armadas la responsabilidad de la defensa estructural del estado y de los intereses nacionales este contexto me permite responder que Myrna Mack reunía perfectamente el perfil de enemigo interno para los principios de la doctrina de la seguridad nacional.”

71

LECHE Could the displaced population have affected the EMP? ROSADA Obviously not, in other words the displaced groups, in the situation in which they found themselves, were unlikely to be able to affect anyone—although possibly they could affect the management of the existence of the displaced, but no, not directly the EMP… LECHE Did you read Cuaderno 6 of the Anthropologist Myrna Mack? ROSADA Yes, I read it. LECHE Is the EMP mentioned in this document? ROSADA No, I don’t think there would be any need to mention it, no. LECHE In Cuaderno 6 of the Anthropologist Myrna Mack is there any mention of General Edgar Augusto Godoy Gaitán? ROSADA No, the document does not make personal references, other than a quotation from a declaration of General Gramajo as Minister of Defense, but there aren’t any such personal references of any kind. LECHE A final question, Dr. Rosada. Do you have any knowledge as to whether General Godoy Gaitán gave the order to assassinate the anthropologist Myrna Mack? ROSADA Definitely and categorically no, attorney.118 118

LECHE. Y podrían tener los desplazados afectar al Estado Mayor de la Defensa, del Estado Mayor Presidencial ROSADA: Obviamente no, o sea los desplazados en la situación en que estaban difícilmente podrían afectar a alguien, posiblemente la derivación del manejo de la existencia de los desplazados pero no, no directamente el Estado Mayor Presidencial no le veo ninguna condición LECHE: Leyó usted el cuaderno número 6 de la antropóloga Myrna Mack ROSADA: Sí lo leí LECHE: Dentro de dicho cuaderno se menciona al Estado Mayor Presidencial

72

*** The next prosecution witness was Carmen Rosa de Leon Escribano, who ran the Comisión Especial de Atención a Repatriados (CEAR)—Guatemala’s official civilian body responsible for repatriating displaced communities—at the time of the murder. She outlined her experience and belief that the military considered repatriated populations an issue of national security and therefore was always resistant to civilian involvement in that issue. This witness also testified extensively to the role of the EMP in the area of displaced persons, and furthermore that government financing for CEAR was channelled through the EMP and that the accused Juan Valencia Osorio was the EMP official responsible for liaising with CEAR—suggesting a close knowledge and role in issues of displaced persons on the part of the EMP and at least one of the accused. In crossexamination, the defense asked whether she had knowledge that the EMP was involved in the murder of Myrna Mack: GUTIÉRREZ Do you know … that the EMP attacked Myrna Mack? DE LEÓN Well, [I know] what we all know from the information available. GUTIÉRREZ My question is whether you have direct knowledge. DE LEÓN That the EMP….? GUTIÉRREZ …attacked Myrna Mack?

ROSADA: No, no creo que hubiera necesidad de mencionarlo no LECHE: También si en dicho cuaderno número 6 de la antropóloga Myrna Mack se mencionó en algún punto de dicho libro al General Edgar Augusto Godoy Gaitán ROSADA: No el cuaderno no hace señalamientos individuales, el cuaderno tiene únicamente una cita del General Gramajo por cierto en tanto el Ministro de la Defensa una declaración que hizo pero no hay señalamientos de ninguna índole LECHE: Una ultima pregunta doctor, tuvo usted conocimiento si el General Godoy Gaitán dio la orden de asesinar a la antropóloga Myrna Mack ROSADA: Definitiva y categóricamente no abogado

73

De LEÓN Me personally? Direct knowledge? No.119

September 10, 2002 The defense’s first witness, former Deputy Minister of Defense and former head of the EMP Jose Luis Quilo Ayuso, repeated and expanded upon the insistence of the accused about the limited role of the EMP, though he admitted that the EMP would undertake “counter-intelligence” in issues such as threats against the president. He did state that to his knowledge the EMP was not involved in political strategic intelligence. Referring to military officers transferred from the army to the EMP, in examination by defense counsel he stated: QUILO …[T]hey are and continue to be officers of the Guatemalan Army. I repeat the process of assignment: they remain officials of the army, they remain soldiers in the Guatemalan army, and they go to the EMP under the command of the administration of the president of the republic. GUTIÉRREZ Accordingly, are these officials who are assigned to the EMP under the command of the President of the Republic or the Minister of National Defense? QUILO The President of the Republic.120 119 GUTIÉRREZ ¿Tuvo usted conocimiento por oídos o por vista que el EMP atentó contra la señora MM?

DE LEÓN Pues lo que sabemos todos por la información que ha habido. GUTIÉRREZ ¿Mi pregunta es que si usted tuvo conocimiento directo? DE LEÓN ¿De que el EMP? GUTIÉRREZ ¿Atentara contra la señora MM? De LEÓN Yo personalmente, conocimiento directo, no. 120 QUILO Sí son oficiales del Ejército de Guatemala, por su puesto, continúan de alta yo quiero insistir en el procedimiento de agregación es decir son oficiales del Ejército soldados del Ejército de Guatemala, van al Estado Mayor Presidencial, bajo el comando de Administración del presidente de la República. GUTIÉRREZ En esa virtud los oficiales están asignados al Estado Mayor presidencial ¿quedan bajo el mando directo del presidente de la República o del Ministro de la Defensa Nacional? QUILO Del presidente de la República.

74

*** The next prosecution witness was Leonel Gomez Rebulla, who worked in Guatemala’s Human Rights Ombudsman’s office at the time of Myrna Mack’s killing. He oversaw that office’s investigation of the case and confirmed that it was a political crime. He also recalled that when it became clear that the investigation was bogging down, he spoke with the investigating police officers, Mérida Escobar (who was subsequently murdered) and Perez Ixcajop (now living abroad in exile). He testified that the police officers stated that the EMP’s Archivo was responsible for the Mack murder. He said that in those conversations he was made aware of the fact that these individuals feared for their safety as a result of their investigation of the Mack murder, and sought to leave Guatemala. I contacted the detectives in charge of the case. Detective Mérida and Detective Pérez Ixcajop were in charge. Mérida was the chief and Ixcajop was the detective working principally on this case, according to what they told me. I was trying to see what evidence they had and it became clear to me they didn’t have much physical evidence. But what troubled me was the fact that these individuals were being harassed. These members of the National Police came to the Ombudsman’s office not so much as detectives seeking help in the investigation, but rather in fear, pleading for help to be taken out of Guatemala. What they told me, from what I can remember, is that they had gone to the Public Prosecutor’s office, where they were told that office would help them leave the country and protect them, but that the help never materialized. They were extremely frustrated by this situation.121

The two investigators later told Gomez Rebulla that it was the Archivo that was telling them to stop pursuing the Mack case investigation. ROMERO …Were the detectives Mérida Escobar y Pérez Ixcajop…told directly by staff of the unit known as the Archivo to stop pursuing the Mack case? If so, how did you establish that? GOMEZ REBULLA Only because they told me so. But what is your question?

121

…[M]e puse en contacto con las dos personas encargadas del caso el investigador Mérida y el Investigador Pérez Ixcajop que eran los encargados. Mérida era el Jefe e Ixcajop era el investigador prácticamente dedicado al caso, conforme empezamos a platicar. Yo traté como de ver qué evidencias tenían y me di cuenta que no tenían mayores evidencias físicas. Lo que me impresionó fue el hecho de la persecución que tenían estas personas pues, estos investigadores de la Policía Nacional, persecuciones que los llevaron a llegar a la PDH ya no como investigadores para ayudar en el caso sino prácticamente con miedo pues, prácticamente pidiendo que se les sacara de Guatemala que se les ayudara. Lo que ellos me manifestaron en esa oportunidad, lo que puedo recordarme fue que asistieron al MP, en el MP les ofrecieron que los iban a ayudar a sacar del país y a protegerlos y situación que nunca se dió. Ellos estaban sumamente decepcionados por esa situación.

75

ROMERO My specific question is: Did you get this information directly from the two detectives? GOMEZ REBULLA Yes. ROMERO When they spoke of the Archivo and that it was a military unit, were you able to identify it? GOMEZ REBULLA No, they told me, I think this is the interpretation you could give to what it says here [referring to a report he had prepared on the case], for example it says that detectives Mérida Escobar and Pérez Ixcajop were informed directly by personnel of the army unit known as the Archivo to stop pursuing the Mack case. ROMERO Thank you.122 According to the witness, it was also clear that investigators and the Mack family were being watched around the clock.

122

ROMERO: Muchas gracias señora Presidenta, teniendo a la vista usted el informe relacionado que usted firmo y envío al procurador quisiera que le explicará por favor al honorable tribunal lo contenido en el 3.2 de la segunda página, 3.2 y que usted informo, los investigadores Mérida Escobar y Pérez Ixcajop que son de quienes usted ya habló hace un momento, fueron informados directamente por personal de la entidad castrense conocido como Archivo que ya no siguieran en el caso de Myrna Mack ¿cómo establecieron ustedes esos extremos? GOMEZ REBULLA: Exclusivamente porque así lo dijeron ellos, cómo es su pregunta disculpe’ ROMERO: Mí pregunta concreta es ¿esa información usted la obtuvo directamente de los 2 investigadores policías’ GOMEZ REBULLA: Sí ROMERO En el momento de que ellos le hablaron del archivo y que era una entidad castrense usted logro identificar esa entidad GOMEZ REBULLA No ellos me lo dijeron, yo creo que es la interpretación que le pueda dar usted a lo que aquí dice, por ejemplo dice los investigadores Mérida Escobar yo estoy como narrando, narrando algo, entonces pongo los investigadores Mérida Escobar y Pérez Ixcajop fueron informados directamente por personal de la entidad castrense conocida como Archivo que ya no siguieran con el caso de Myrna Mack ellos me lo dijeron, yo lo digo como narrando. ROMERO Muchas gracias.

76

*** Prosecution witness Rubio Amado Caballero, an AVANCSO colleague of Myrna Mack’s who was the last of her colleagues to see her alive, testified that when he left AVANCSO offices on the night of September 11, 1990, about an hour before the murder, he noticed two men waiting outside the office. Later, when Beteta Álvarez was identified and tried as a suspect, he recognized him as having been one of them. The day’s testimony ended with defense witness, former Defense Minister General Juan Leonel Bolaños Chavez, who stated that EMP members were part of the army but that as Minister of Defense he could not give them orders because their orders came from the President of the Republic in his capacity as Commander in Chief of the Army.

September 11, 2003 Monsignor Gerardo Humberto Flores Reyes, the Bishop of Cobán, in the department Alta Verapaz—one of the regions most affected by the civil war in Guatemala. He testified for the prosecution on the issue of displaced populations and the army’s repression of them in the 1980s and the beginning of the 1990s, as well as to the surveillance of Myrna Mack and other occurrences prior to and following her death. He testified that he knew and was in frequent contact with Myrna Mack while she was carrying out her field work. He said that Mack had a great social conscience, but no ideological bias. She was tense, he said, in the days before she was killed. The day’s most important witness was prosecution witness Jorge Lemus Alvarado (also known as El Buky), who testified at length about video and audio-taped interviews he had conducted with Noel de Jesus Beteta Álvarez in 1994, while Beteta Álvarez was in prison for killing Myrna Mack. His was probably the weightiest testimony of the trial, as it directly linked two of the three accused—Godoy Gaitán and Valencia Osorio—to the carrying out of the killing by Beteta Álvarez. (The court would later review the tapes.) Lemus Alvarado testified that he befriended Beteta Álvarez during his own detention in the same prison and later taped the interviews during visits to the prison where Beteta Álvarez was being held. Lemus Alvarado said that Beteta Álvarez told him that Valencia Osorio ordered the killing of Myrna Mack, with approval from Godoy Gaitán. He testified that Beteta Álvarez said he received a “thumbs down” gesture from Valencia Osorio, indicating that Mack should be killed. In his opening statement he said: I went back to visit Noel Beteta on March 29, 1994, when he agreed to a second audio-taped interview. In this interview Noel de Jesús Beteta Alvarez discussed in detail the matter and clearly related how Colonel Juan Valencia Osorio gave the direct order to kill the anthropologist Myrna Mack. He told me that when he arrived at his office in the EMP, he found a file folder on his desk and that this file contained key information about the anthropologist Myrna Mack, including

77

her office address, where she lived, where she worked, her activities. He looked at the file and picked it up, and approached Colonel Juan Valencia Osorio and said to him: “And this, Colonel?” And he [Valencia] said, “Investigate her” and then he did this [Lemus Alvarado demonstrates a thumbs-down gesture], the sign of the Romans, that she should be killed.123

Asked why he carried out the interviews and had taped them, Lemus Alvarado said repeatedly in both examination in chief and in cross-examination that it was because he had always wanted to be an investigative journalist. The third witness was Ricardo Alvarado Ortigoza, former Adjunct Human Rights Ombudsman (Procurador Adjunto de Derechos Humanos), who testified for the prosecution about death threats reported to him by the wife of the doctor who treated Beteta Álvarez for his hand wounds, sustained prior to the murder, records of which the defense sought to use to prove he was on medical leave at the time the murder occurred. Finally, Sergio Arnoldo Camargo Morales, the former second in command of the EMP, testified for the defense. He vigorously denied that the EMP had ordered Myrna Mack’s killing and said that even surveillance of her would be contrary to the purpose of the EMP. He brought along a leather-bound copy of the “Laws of Guatemala” with yellow markers inserted at various points, including at the provision stating that illegal orders are not “obligatorios.” Camargo repeatedly avoided answering the prosecution’s questions about the chain of command of the EMP, until asked by the presiding judge. She asked him whether he could have given an order to Beteta Álvarez and he conceded that he could have. He also confirmed the strict chain of command within the EMP.

September 12, 2002 Prosecution witness Virgilio Rodriguez Santana, a newspaper vendor near the Mack family home at the time of the murder, who had noticed surveillance involving several individuals around the house in the weeks leading up the murder, was flown in from Canada to testify for the prosecution. His testimony helped demonstrate the coordinated, orchestrated nature of the attack on Myrna Mack, establishing that it was a pre-meditated operation carried out by state security forces. Rodriguez would later identify Beteta Álvarez to be one of those participating in the surveillance, thus connecting the surveillance to the murder for which Beteta Álvarez was ultimately convicted. Rodriguez testified that in 1990 he sold newspapers from a spot near the Mack home in Guatemala City, and that he saw three men watching the house days before 123

“[V]olví a visitar a Noel Beteta y así el 29 de marzo de 1994, me concedió la segunda entrevista grabada. En esta entrevista Noel de Jesús Beteta Álvarez, entra a fondo en el asunto y claramente relata cómo fue el Coronel Juan Valencia Osorio, quien le dio la orden directa de ultimar a la antropóloga Myrna Mack. Me dijo que cuando él llego a su oficina en el Estado Mayor Presidencial, encontró un archivo sobre su escritorio y que este archivo contenía todos los datos de la antropóloga Myrna Mack, incluyendo su dirección de trabajo, donde residía, lugar donde trabajaba, actividades que ella desarrollaba. Ojeó el expediente y se levantó, y llegó con el Coronel Juan Valencia Osorio y le dijo: ¿Y esto mi Coronel? Y, él le dijo: Invéstigala y, y le hizo así la señal como los romanos, de que la ultimara.”

78

Myrna Mack’s killing. When he later read about the case in the newspaper, he said that he recognized Beteta Álvarez as one of these three men. The public prosecutor, to help prove the “consolidation” of the crime, asked why he had fled Guatemala. He responded that he feared for his life. The second and final witness of the day, an expert witness for the prosecution, was Kate Doyle, of the Washington, D.C.-based National Security Archive (NSA). Doyle testified that the NSA had started a Guatemala documentation project in 1994, eventually obtaining some 15,000 declassified documents, products of the close U.S.-Guatemala relationship. Doyle’s testimony supported the prosecution’s contention that military units like the EMP carried out undercover intelligence operations including political murders. In testimony based on declassified documents which themselves would later be read into the written record, Doyle stated: “The documents state in great detail extensive periods … of extreme violence during the civil war. The documents are unequivocal as regards the role of the Guatemalan Army and the police in committing these violations, and equally clear as regards the deliberate use of terror by the State, as part of its counterinsurgency policy and strategy….In the period in question, the late 1980s and the early 1990s, the documents describe a consistent pattern of violence perpetrated by State security forces, including the D2, the Department of Presidential Security [of the EMP], the Policía Militar Ambulante and police forces. The violence was directed not only against guerrillas but also against people that they considered to be guerrilla sympathizers, people like Myrna Mack, students, journalists, doctors, political figures.” Doyle described the unity of the Guatemalan military intelligence system, and cited a declassified cable from former U.S. Ambassador Thomas Stroock describing the use of targeted violence to chill political activity. Stroock gave examples, she said, including Myrna Mack’s killing. Refuting the defense’s contention that the EMP’s purpose was merely to protect the president, his family and staff, Doyle also testified that the EMP had an intelligence unit that was most often called the “Archivo.” She testified that from 1983 to 1985 it produced a document known as the “diario militar” or military journal, which was a daily record of the abductions of suspected subversives in Guatemala City, along with their dates of seizure, length of time interrogated, and their fate. She further testified that such illegal conduct on the part of the EMP persisted into the period in question—the late 1980s and early 1990s. The following is an exchange between the witness and Helen Mack’s lawyer Lic. Roberto Romero. ROMERO In your capacity as expert, I ask you if in your experience and with the information contained in the declassified documents to which you have had access, did Guatemala’s EMP undertake intelligence activities? DOYLE Yes, it did, through the intelligence unit in the EMP.

79

ROMERO By what name is the intelligence unit in the EMP known? DOYLE The documents mention many names but that which is used most frequently is the Archivo. ROMERO Do you know as an expert if what was previously known as the Archivo is now known as the Department of Presidential Security? DOYLE Yes, it is the same unit as the D.S.P. ROMERO Thank you. This institution, according to the documents and your experience with the declassified documents: was it operating in 1990? DOYLE Yes, yes, it was operating.124 Several of the defense lawyers questioned Doyle, who remained unruffled despite the difficulty of testifying through a lone interpreter who made many errors, especially as time passed. The public prosecutor requested that a substitution of the interpreter be made in the middle of the questioning, but the translator insisted that she was capable and the judge allowed her to stay on.125 One defense lawyer questioned Doyle about redactions in the declassified documents, and another asked how she knew that the information in them was reliable. Doyle said she checked the information against many other sources. A 124

ROMERO Concretamente en la calidad de perito le pregunto si con su experiencia y con la información contenida en los documentos desclasificados a los que usted ha tenido acceso el Estado Mayor Presidencial de Guatemala, ¿hace actividades de inteligencia? DOYLE Sí lo hace a través de su unidad inteligencia en el Estado Mayor Presidencial. ROMERO ¿Con qué denominación se conoce a la unidad de inteligencia del departamento del Estado Mayor Presidencial? DOYLE El documento menciona muchos nombres pero el que se menciona más frecuentemente es archivo. ROMERO ¿Tiene usted conocimiento como perito si lo que antes se denominaba el archivo hoy se denomina como Departamento de Seguridad Presidencial? DOYLE Si es la misma unidad que la D.S.P. si lo es ROMERO Gracias, esa institución de acuerdo a los documentos y a su experiencia los documentos desclasificados. ROMERO Operaba ya en 1990? DOYLE Si, si el operaba. 125 It is possible that the poor quality of the translation may have lessened the impact that the testimony.

80

third defense lawyer suggested that the documents had been declassified in order to cause a reaction in Guatemala. Judge Ríos rebuked the lawyer for testifying rather than asking questions, and in one case, for asking an “impertinent” question.

September 16, 2002 Colonel Clever Pino, a Peruvian intelligence specialist, testified as an expert witness for the prosecution (at the initiative of Helen Mack). Colonel Pino talked at length about the Doctrine of National Security, and painted a detailed picture of the central role of intelligence operations in the application of the doctrine. He stated that security units had existed throughout Latin America, and they were structured in accordance with military instruction offered by the United States. Colonel Pino stated that such units typically were a façade covering illegal special operations, and that Guatemala’s EMP had characteristics of such an entity. In addition, he testified to the chain of command used in intelligence operations carried out by these units. His testimony backed the prosecution’s contention that the murder operation could not have been planned and carried out by a lone executioner. As part of the prosecution’s strategy to implicate the three accused directly in the murder, the witness provided a considerable degree of specificity as to the nature of the roles held by persons occupying positions that the three accused would have held within the EMP at the time that Myrna’s murder was ordered. The following is an exchange between prosecution military expert Rodolfo Robles and the witness. The prosecution’s intention here was evidently to demonstrate that an agent like Beteta Álvarez could have received the order to kill directly from the head of the Department of Security in the intelligence unit (Juan Valencia Osorio’s position), and that the operations officer (the position Oliva Carrera held) and the chief of the unit (Godoy Gaitán’s position) would have had to have been involved also in the planning, organization and approval of the operation. ROBLES Can an intelligence agent autonomously plan, prepare and execute a special intelligence operation? PINO I think the answer is evident that by no means. … An intelligence operation is a complex event that requires elements of command, elements of control, management of means, logistics, resources. So by no means. Given both the level of hierarchy that is involved and the level of the operation itself, never could an intelligence agent carry out on his own an intelligence operation. ROBLES What is the chain of command for a department of security intelligence agent in an Estado Mayor [General Staff]?

81

PINO … Normally the line of ascendency would be the following: the agent or specialist, the official of operations, the second in command, and then the chief. That would be the channel. ROBLES Could an intelligence agent receive an order for an intelligence operation directly from the head of the department of security?

PINO I think we have to put ourselves in the dynamic of an intelligence operation, or in the situation of a counterinsurgency war or counterinsurgency authorities. It is quite feasible that the chief could give an order directly to the agent but this [agent] would inform his immediate boss, who is the official of operations or the “official of the case” as we call it in the planning of an intelligence operation. [The agent] would inform [the official of operations] as to the order received because the official of operations would have to provide the resources. In turn [the official of operations] would have to coordinate with the second in command all that is involved with carrying out the intelligence activity. [The second in command] in turn will verify with the chief … the extent, the requirements, the implications, and the needs that the operation as such requires.126

126

ROBLES: Gracias, ¿puede un agente de inteligencia en forma autónoma planear, preparar y ejecutar una operación especial de inteligencia? PINO Yo creo que la respuesta es evidente de ningún modo ya a estas alturas de la exposición hemos comprendido que una operación de inteligencia es un evento complejo que requiere del elementos de comandos, elementos de control, manejos de medios, logísticos de recursos así que de ningún modo podría ser tanto por su nivel jerárquico como por su… el nivel mismo de la operación de inteligencia jamás un agente de inteligencia podría él realizar por cuenta propia una operación de inteligencia ROBLES ¿Cuál es la cadena de mando para un agente de inteligencia de un departamento de seguridad de un Estado Mayor? PINO No siendo esto la generalidad pero normalmente en línea ascendente sería de la siguiente forma el agente este o especialista el oficial de operaciones el segundo jefe y luego el jefe ese sería el canal ROBLES ¿puede un agente de inteligencia recibir una orden de inteligencia operativa directamente del jefe del departamento de seguridad? PINO Yo considero que hay que ubicarnos en la dinámica de una operación de inteligencia o de una coyuntura de guerra contrainsurgente o autoridades contrainsurgentes entonces es factible que el jefe le pueda dar una orden directa al agente pero este inmediatamente pondrá en conocimiento de su jefe inmediato el oficial de operaciones u oficial del caso como se denomina en el planeamiento de una operación de inteligencia, pondrá en conocimiento de la orden recibida toda vez que él tendrá que proveerle de los recursos el oficial de operaciones a su vez coordinará con el segundo jefe todo lo que implique la realización de la actividad de inteligencia y este verificará con quién dio la orden con el jefe los alcances los requerimientos las implicancias las necesidades que la operación en si requiera.

82

Counsel for the defense made efforts to impugn the witness, by getting him to admit differences between Peru and Guatemala, and to admit that he had never been to Guatemala in the 1960s, 70s, 80s or 90s. Colonel Pino admitted that he had come to Guatemala only two weeks before his testimony, but pointed out that he had come to testify on the Doctrine of National Security and on intelligence systems in Latin American armies generally, not specifically on Guatemala.

September 17, 2002 Noel de Jesus Beteta Álvarez, the former EMP operative who was convicted in 1993 of stabbing Myrna Mack to death, testified that during the 1994 taped interviews in which he confessed to the crime in detail he was under the influence of drugs. He said that Jorge Lemus Alvarado, his former cellmate who made the interviews, had caused him to become addicted to drugs and then forced him to make the tapes to get more drugs. He claimed that Lemus Alvarado offered money, drugs, and departure from Guatemala. Beteta Álvarez also said that Helen Mack was behind offers of drugs and money to make the tapes. “As a drug addict himself [Lemus Alvarado], influenced me to the point where I became a drug addict too. I have no shame in stating this now that I am very pleased to have left that evil behind. When he [Lemus Alvarado] was released from prison he would come back to visit, saying he was a freelance journalist, and that he had been in contact with Helen Mack, and that she had offered him money so that he in turn would offer it to me and drugs as well, to the extent that he always gave me drugs. When he saw me in this desperate state he asked me if I would make this video. The last time, when he brought the [video] camera, he passed himself off as a journalist, but actually he was bringing in drugs in the camera itself…. 127 Beteta Álvarez added “I ask forgiveness of God and of the three military officials whom I unconsciously implicated due to drug addition I was experiencing.”128 Beteta Álvarez also argued that he could not have killed Myrna Mack because of an injury to his finger. He had the last of several operations on the finger, he said, only a few 127

“… [F]ue él como persona adicta, me fue influyendo eso hasta que llegó el momento que me volví un adicto a la droga, no me arrepiento de decirlo ahora al contrario me siento muy contento y gozoso de haber salido de ese mal, y no esta de más decirle que cuando el salió recobró su libertad siempre insistió en visitarle aludiendo que él era un periodista independiente, y que él había tenido contacto con la Licenciada Helen Mack y que ella le había ofrecido a él dinero para que me ofreciera a mí inclusive droga, tal extremo llegó, de que él siempre me daba droga a la zona 18, cuando él ya me vio en el estado calamitoso y de desesperación de droga fue cuando el me pidió que yo hiciera ese vídeo, la ultima vez cuando él llevo la cámara que lo cual él fue que la ingreso porque se hacia pasar por periodista en la misma cámara ingreso la droga…” 128 “…[L]e pido perdón a Dios y posterior se lo pido a los señores militares a los cuales involucre inconscientemente a la adicción que yo me encontraba.”

83

days before the killing. After his opening statement, Beteta Álvarez was questioned by three of the defense lawyers. In response to their questions, he denied most of what he said in the taped interviews. He maintained that his only work, as a member of the EMP, was to “lend security” to the president, his family and staff, and visiting foreign heads of state. In the tapes, Beteta Álvarez had said that he was part of a trained death squad run out of the EMP, and that Myrna Mack was the 30th person he had killed. However, during his testimony, he said he never received an illegal order, and had no direct access to any of the top leaders of the EMP.129 Mack Foundation lawyer Claudia Gonzalez cross-examined Beteta Álvarez but was repeatedly interrupted by objections from the defense. In further cross-examination by public prosecutor Mynor Melgar Beteta Álvarez confirmed that he did in fact make the taped statements. MELGAR The question is if it is your voice that appears in the audio cassette tapes that you mentioned. BETETA I believe I answered that. That I made those statements under the influence. MELGAR Is it your voice, witness? Is it your image that appears in the video that was taped there? Does it correspond to your image? BETETA I already answered. MELGAR Is it your image? PRESIDING JUDGE Answer yes or no. BETETA Yes.130 129

He added he was never threatened by them after the crime. He had however earlier written several notarized letters to the authorities, complaining of threats. The letters have been entered into evidence. 130 MELGAR La pregunta es si es su voz la que aparece en las grabaciones de audiocassette que usted mencionó en su declaración. BETETA Yo creo que eso ya lo contesté. Que bajo efectos lo había hecho. MELGAR Es su voz entonces señor testigo, ¿es su imagen la que aparece en el video que se grabó allí, le corresponde a su imagen? BETETA Ya lo contesté.

84

Lic. Melgar also referred to Beteta Álvarez’s statement to investigators on December 4, 1990, in which he said that his work at the EMP had been to provide security for the president as well as to conduct criminal investigations—directly contradicting the defense claim that the EMP had no such purpose. When Beteta Álvarez said that he had not been under the influence of drugs during that statement, the prosecutor asked him, “did you lie?” and then pushed Beteta Álvarez to explain what he had meant by “criminal investigations” and why he had left that task out of his current testimony. Beteta Álvarez became surly and argumentative, until Judge Ríos instructed him not to argue with the prosecutor, but to answer directly, addressing himself to the judges. Beteta Álvarez ultimately admitted that the EMP “had the capacity to investigate persons,”131 but explained that such investigations were carried out only for limited purposes linked to the security of the president and his family.

September 19, 2002 The final witness was Vinicio Cerezo, Guatemala’s president from 1986 to 1991. Cerezo indicated that he had reformed institutions like the EMP so that they no longer committed the kinds of rights abuses that had occurred in previous years. Referring specifically to the Archivo, he stated the following in examination. MELGAR Witness, can you explain what changes you made in the EMP? CEREZO Fundamentally we made a change that was to eliminate what was called the Archivo and it became the Department of Presidential Security, due to some political connotations that it was believed that this unit had in the past. I have no direct knowledge of these connotations but it was rumored that it undertook activities of investigation, intelligence, seeking and locating persons that were considered enemies of the State. In a policy of openness, democratization and the establishment of the rule of law, I thought that the EMP should not be linked to any such activity. Therefore it became the Department of Presidential Security, and it was established that its conduct and actions should be directed to comply with this function.132 MELGAR ¿Es su imagen? PRESIDENTA Conteste si o no dice. BETETA Sí. 131

“Se supone que si investigaban, señora presidenta, si tenía la capacidad o sea para investigar a la persona.” 132 MELGAR Señor testigo, ¿puede explicar qué cambios fueron los que usted efectúo en el Estado Mayor Presidencial? CEREZO

85

Cerezo did, however, say that many in the armed forces under his administration continued to oppose peace negotiations and political liberalization. There were four coup attempts during his years in power.

Bueno, fundamentalmente se produjo un cambio que fue la desaparición de lo que se le llamaba el Archivo y se convirtió en el Departamento de Seguridad Presidencial, por algunas connotaciones políticas que se suponía esta sección de archivo tenía en el pasado. A mí no me consta esas connotaciones pero se rumoraba que ejercía actividades de investigación, de inteligencia, en busca de localización de personas que se consideraban enemigas del Estado. Nosotros, yo consideraba dentro de una política abierta, de democratización y de establecimiento de Estado de Derecho, el Estado Mayor Presidencial no debería estar vinculado a ninguna (ex...) actividad y por lo tanto se convirtió en el Departamento de Seguridad Presidencial, y se establecieron que su comportamiento y sus acciones debería dirigidas básicamente a cumplir con esta función .

86

Appendix Two EXTRACTS FROM UNOFFICIAL ENGLISH TRANSLATION OF COURT DECISION OF OCTOBER 3, 2002 C-5-99 Of. 3ro. THIRD TRIAL COURT FOR CRIMINAL MATTERS, DRUG AND ENVIRONMENTALLY-RELATED CRIMES GUATEMALA, 3 OCTOBER 2002. I) In the Name of the People of the Republic of Guatemala, at the oral and public trial, this Court sentences the accused, Edgar Augusto Godoy Gaitán, Juan Valencia Osorio, and Juan Guillermo Oliva Carrera, for the crime of murder. On the part of the plaintiff, The Public Ministry is represented by Mynor Alberto Melgar Valenzuela and Zoila Tatiana Morales Valdizon, Plaintiff Helen Beatriz Mack Chang under the direction of Counsels Luis Roberto Romero Rivera and Claudia Gonzalez Orellana. The Defense proceeds as follows: Representing Edgar Augusto Godoy Gaitán are Efren Dario Leche Hernandez and Juan Horacio Padilla Guillen; representing Juan Guillermo Oliva Carrera are Counsels Hector Fernando Gutierrez Mendoza and Leopoldo Armando Guerra Juarez; representing Juan Valencia Osorio are Counsels Sergio Danilo Castro Basteguieta and Fernando Giron Casiano.

II)

Identification of the Accused

Edgar Augusto Godoy Gaitán, Seventy [sic] year-old Guatemalan, married, in the military, residing at 4-19, Lot San Antonio, Sta. Catarino Pinula, Guatemala, no known aliases, born 23 September 1942 in Guatemala City, son of Salvador Godoy Ponciano and Marta Elena Gaitán, identity card # A-1, Registry # 288,779 issued by the City of Guatemala, with no criminal record (as stated in the debate). Juan Valencia Osorio: Fifty years old, married, in the military, domicile at First Street D 8–38, Zone 17, Lourdes District, Guatemala City, no known aliases, born 24 October 1951 in Guatemala City, son of Juan Valencia and Teresa Osorio, Registry # 414,893, issued by the Mayor of the City of Guatemala, with no criminal record (as stated in the debate). Juan Guillermo Oliva Carrera: Forty-eight years old, married, in the military, residing at Second Street D 7–86, Zone 17, Colonia Lourdes, Guatemala City, no known aliases, born 24 June 1954 in Guatemala City, son of Juan Oliva Arriaza and Dora Carrera de Oliva, area ID # A-1, Registry # 528,136 issued by the Mayor of the City of Guatemala, with no criminal record (as stated in the debate).

87

III) On the Facts and Circumstances relevant to the accusation and the opening of the trial The Public Ministry considered the opening of the trial to be appropriate, which it requested of the Second Court of First instance for Criminal Matters, Drug- and Environment-related Crime (Juzgado Segundo de Primera Instancia Penal, Narcoactividad y Delitos contra el Ambiente). The Public Ministry constitutes the formal petitioner in the case of those being tried, Edgar Augusto Godoy Gaitán, Juan Valencia Osorio y Juan Guillermo Oliva Carrera, for the crime of murder. With respect to this finding, the following facts were referred to: [ed. The following is excerpted from charges against the three accused by the Public Ministry] “A) Because at an undetermined date, time and place, you, Edgar Augusto Godoy Gaitán, Head of the Presidential General Staff, conspired with Juan Valencia Osorio and Juan Guillermo Oliva Carrera, Chief and Deputy Chief, respectively, of the Presidential Security Department of the Presidential General Staff, and conceived and ordered a plan for surveillance and the physical elimination of social anthropologist Myrna Elizabeth Mack Chang, a plan consummated on September 11, 1990 with the stabbing death of the above-named victim. The plan included constant surveillance and tracking of Myrna Elizabeth Mack Chang, which began around August 1990 and culminated on September 11 of that year. In the surveillance and tailing various types of vehicles were used, including motorcycles. Disguised agents posted at various strategic points were also used. The plan was to police the victim’s activities. Her home was watched constantly and she was tailed from the time she left her home and headed for work at the Association for the Advancement of Social Sciences [Asociación para el Avance de las Ciencias Sociales – AVANCSO] and then the route back home. Her travel within Guatemala was also watched. This surveillance plan, ordered by the accused, culminated with the victim’s physical elimination. The latter was carried out by then Army Sergeant Major Specialist Noel de Jesús Beteta Álvarez, attached to the Presidential Security Department of the Presidential General Staff, along with other unidentified assailants. The plan for the victim’s elimination was hatched by the accused and then conveyed to Beteta Álvarez. In conceiving their plan, the accused used the resources and structure of the Department of Presidential Security of the Presidential General Staff, a unit under the accused’ command. Military law prescribed the unit’s organization and hierarchy, and its purpose was to serve the President of the Republic and his family. The accused availed themselves of the department’s financial, logistical and operational resources, its information, and the material and human resources that enabled them to design and execute plans, missions and assignments.

88

Thus, the accused availed themselves of and used all the facilities that this infrastructure afforded them because they were the highest-ranking officers within it. Within this hierarchy, the accused Edgar Augusto Godoy Gaitán was the commanding officer, with full knowledge of all activities in which the various constituent units of the Presidential General Staff and their personnel were engaged. This was particularly true of the Presidential Security Department of the Presidential General Staff, because at the time that unit was responsible for gathering intelligence, analyzing and monitoring the activities of power factors [ed.: individuals and groups considered influential], which mean engaging in intelligence activities (gathering information for decision-making). As his position in the military hierarchy dictated, it was the duty of the accused to personally see to it that the functions and duties of the units under his command were properly carried out. It was his duty to ensure that his subordinates obeyed the laws, orders, and military rules in disciplined fashion and to the letter. Accordingly, it was his duty to request detailed, daily information on the activities carried out within the Command, and to closely monitor the use of the Command’s material and human resources. It was his duty to give orders and be aware of any orders given to his subordinates. Thus, he had full knowledge of and was absolutely responsible for the actions of his subordinates; the Chief and Deputy Chief of the Department of Presidential Security of the Presidential General Staff were also accountable for their subordinates. While the accused were in command, the Department of Presidential Security of the Presidential General Staff –known as the “Archivo”- engaged in a variety of activities that were not those prescribed in the nation’s laws. These activities were outside the law, and included mail tampering, surveillance operations, and killings. Edgar Augusto Godoy Gaitán along with Juan Valencia Osorio and Juan Guillermo Oliva Carrera conceived the plan and ordered the killing of Myrna Mack, because they believed that the social anthropologist had links to the Communities of Peoples in Resistance. They came to this conclusion because of the research she was conducting as a social anthropologist and because of what her research revealed about the topic of peoples displaced by the internal armed conflict, which they felt was prejudicial to military strategy (counterinsurgency) and detrimental to the image of the State because of the way the displaced civilian population was being treated. Once Noel de Jesús Beteta Álvarez carried out the murder, the accused tried to cover up the crime. They were always careful to take advantage of their higher rank, which they used to intimidate and to order document tampered with or the destruction of documents. They exerted their influence to ensure that requests made by the Public Ministry’s representative seeking documents and information were denied.” “B) Because at an undetermined date, time and place, you, Juan Valencia Osorio, as chief of the Department of Presidential Security of the Presidential General Staff, along with Edgar Augusto Godoy Gaitán and Juan Guillermo Oliva Carrera, chief of the Presidential

89

General Staff and deputy chief of the Department of Presidential Security of the Presidential General Staff, respectively, conceived and ordered a plan for surveillance and the physical elimination of social anthropologist Myrna Elizabeth Mack Chang, a plan consummated on September 11, 1990 with the stabbing death of the above-named victim. The plan included constant surveillance and tracking of Myrna Elizabeth Mack Chang, which began around August 1990 and culminated on September 11 of that year. In the surveillance and tailing various types of vehicles were used, including motorcycles. Disguised agents posted at various strategic points were also used. The plan was to police the victim’s activities. Her home was watched constantly and she was tailed from the time she left her home and headed for work at the Association for the Advancement of Social Sciences [Asociación para el Avance de las Ciencias Sociales – AVANCSO] and then the route back home. Her travel within Guatemala was also watched. This surveillance plan, ordered by the accused, culminated with the victim’s physical elimination. The latter was carried out by then Army Sergeant Major Specialist Noel de Jesús Beteta Álvarez, attached to the Presidential Security Department of the Presidential General Staff, along with other unidentified assailants. The plan for the victim’s elimination was hatched by the accused and then conveyed to Beteta Álvarez. In conceiving their plan, the accused used the resources and structure of the Department of Presidential Security of the Presidential General Staff, a unit under the accused’ command. Military law prescribed the unit’s organization and hierarchy, and its purpose was to serve the President of the Republic and his family. The accused availed themselves of the department’s financial, logistical and operational resources, its information, and the material and human resources that enabled them to design and execute plans, missions and assignments. Thus, the accused availed themselves of and used all the facilities that this infrastructure afforded them because they were the highest-ranking officers within it. Within this hierarchy, the accused, Juan Valencia Osorio had the duty to personally verify that the personnel under his command, and in particular the specialists properly carry out their duties and functions. It was also his duty to impose or recommend appropriate sanctions in cases of non-compliance. Accordingly, it was his duty to establish the appropriate mechanisms to effectively control the personnel under his command with respect to the principles of subordination and discipline, requiring that he demand his orders be carried out exactly and promptly. It was his duty to be fully informed of all the actions of the unit under his command, through the daily reports he was to solicit from the responsible persons, exercising control of the activities of the personnel and of the use of the physical resources of the operation.

90

In addition, he could give and had to make effective the orders given by determining the personnel appropriate to carry them out. Therefore, he was the responsible person with full knowledge of all activities that the subordinates of the operation were developing under his command. In this sense, then, the unit under his command was charged with the task of obtaining information, analyzing and controlling the intelligence activities (gathering information for the decision-making). While the accused were in command, the Department of Presidential Security of the Presidential General Staff –known as the “Archivo”- engaged in a variety of activities that were not those prescribed in the nation’s laws. These activities were outside the law, and included mail tampering, surveillance operations, and killings. Juan Valencia Osorio, Edgar Augusto Godoy Gaitán and Juan Guillermo Oliva Carrera conceived the plan and ordered the killing of Myrna Mack, because they believed that the social anthropologist had links to the Communities of Peoples in Resistance. They came to this conclusion because of the research she was conducting as a social anthropologist and because of what her research revealed about the topic of peoples displaced by the internal armed conflict, which they felt was prejudicial to military strategy (counterinsurgency) and detrimental to the image of the State because of the way the displaced civilian population was being treated. Once Noel de Jesús Beteta Álvarez carried out the murder, the accused tried to cover up the crime. They were always careful to take advantage of their higher rank, which they used to intimidate and to order documents tampered with or the destruction of documents. They exerted their influence to ensure that requests made by the Public Ministry’s representative seeking documents and information were denied.” “(C) Because at an undetermined date, time and place, you, Juan Guillermo Oliva Carrera, as deputy chief of the Department of Presidential Security of the Presidential General Staff (EMP), along with Edgar Augusto Godoy Gaitán and Juan Valencia Osorio, chief of the Presidential General Staff and chief of the Department of Presidential Security of the Presidential General Staff, respectively, conceived and ordered a plan for surveillance and the physical elimination of social anthropologist Myrna Elizabeth Mack Chang, a plan consummated on September 11, 1990 with the stabbing death of the abovenamed victim. The plan included constant surveillance and tracking of Myrna Elizabeth Mack Chang, which began around August 1990 and culminated on September 11 of that year. In the surveillance and tailing various types of vehicles were used, including motorcycles. Disguised agents posted at various strategic points were also used. The plan was to police the victim’s activities. Her home was watched constantly and she was tailed from the time she left her home and headed for work at the Association for the Advancement of Social Sciences [Asociación para el Avance de las Ciencias Sociales – AVANCSO] and then the route back home. Her travel within Guatemala was also watched.

91

This surveillance plan, ordered by the accused, culminated with the victim’s physical elimination. The latter was carried out by then Army Sergeant Major Specialist Noel de Jesús Beteta Álvarez, attached to the Presidential Security Department of the Presidential General Staff, along with other unidentified assailants. The plan for the victim’s elimination was hatched by the accused and then conveyed to Beteta Álvarez. In conceiving their plan, the accused used the resources and structure of the Department of Presidential Security of the Presidential General Staff, a unit under the accused’ command. Military law prescribed the unit’s organization and hierarchy, and its purpose was to serve the President of the Republic and his family. The accused availed themselves of the department’s financial, logistical and operational resources, its information, and the material and human resources that enabled them to design and execute plans, missions and assignments. Thus, the accused availed themselves of and used all the facilities that this infrastructure afforded them because they were the highest-ranking officers within it. Within this hierarchy, the accused, Juan Guillermo Oliva Carrera, was a subordinate of the Chief of the Department of Presidential Security of the Presidential General Staff and as such had the duty to obey and in addition had the duty to personally carry out all the dispositions, orders, laws and regulations of the army, especially those relating to internal norms and procedures of his department, as well as the particular orders he received from his immediate superior. It was his duty to personally and directly monitor the activities of the personnel under his control, correcting and admonishing actions that could qualify as order and discipline. It was his duty to provide his immediate superior a fully detailed summary of the daily activities of the operation. He had to carry out a rigorous and daily review of the operation’s files in that involved activities of his personnel, inspections or use of materials resources under his control, and ascertaining with exactitude all such activities. In addition, he could give and had to make effective the orders given by determining the personnel appropriate to carry them out. Therefore, he was the person responsible for the acts and failures to act by those under his command, and also personally responsible for the use made of the resources of the operation under his command. In this sense, then, the unit under his command was charged with the task of obtaining information, analyzing and controlling the intelligence activities (gathering information for the decisionmaking). While the accused were in command, the Department of Presidential Security of the Presidential General Staff –known as the “Archivo”- engaged in a variety of activities that were not those prescribed in the nation’s laws. These activities were outside the law, and included mail tampering, surveillance operations, and killings. Juan Guillermo Oliva Carrera, Edgar Augusto Godoy Gaitán and Juan Valencia Osorio, conceived the plan and ordered the killing of Myrna Mack, because they believed that the

92

social anthropologist had links to the Communities of Peoples in Resistance. They came to this conclusion because of the research she was conducting as a social anthropologist and because of what her research revealed about the topic of peoples displaced by the internal armed conflict, which they felt was prejudicial to military strategy (counterinsurgency) and detrimental to the image of the State because of the way the displaced civilian population was being treated. Once Noel de Jesús Beteta Álvarez carried out the murder, the accused tried to cover up the crime. They were always careful to take advantage of their higher rank, which they used to intimidate and to order documents tampered with or the destruction of documents. They exerted their influence to ensure that requests made by the Public Ministry’s representative seeking documents and information were denied. IV)

Precise, Proven Determination of the Facts that this Court deems credible

The members of this Criminal Sentencing Tribunal, as a result of weighing the proof substantiated during the debate, pursuant to the rules of the Sana Crítica Razonada, conclude the following: 1. That the violent death of Myrna Mack Chang who sustained fatal knife wounds to her neck, thorax and abdomen on 11 September 1990 on 12th Street facing 12-17 in Zone One was certified in the Death Certificate. 2. That, on 11 September 1990 the defendants Godoy, Valencia, and Oliva held the positions of Head of the Presidential General Staff (the “EMP”), Head of the Department of Presidential Security of the EMP, and Sergeant Major Specialist with the EMP, respectively, as stated in Official Notice # 5633, signed by the Minister of National Defense, Division General Julio Arnoldo Balconi Turcios. 3. That the anthropologist Myrna Elizabeth Mack Chang was the victim of surveillance and persecution until the day she died was established by the testimonies of Clara Maria Josefina Arenas Bianchi, Rubio Amado Caballeros Herrera, Julio Edgard Cabrera Ovalle and Gerardo Humberto Flores Reyes. 4. That, according to the testimony of Jorge Guillermo Lemus Alvarado and sworn to in the audio and visual tapes presented in the debate, the order to kill Anthropologist Mack was given to Specialist Noel de Jesus Beteta Álvarez by Colonel Juan Valencia Osorio. 5. That, according to the testimonies of Clara Maria Josefina Arenas, Julio Edgar Cabrera Ovalle and Gerardo Humberto Flores Reyes, Myrna Mack’s death was the result of her investigations for the Association for the Advancement of Social Sciences (“AVANCSO”) related to displaced persons and refugees in areas of armed conflict. 6. That, according to the statement of witness Jorge Guillermo Lemus Alvarado and confirmed in the aforementioned audio and visual tapes, resources of the Presidential General Staff’s (“EMP’s”) Presidential Security Department, where the order to kill anthropologist Myrna Mack originated, were used to carry out her murder.

93

V)

Court’s Reasons to Convict or Acquit

[….] A. On the Existence of the Crime As precedent in this case we rely on the decision handed down by the fourth court of appeals which evaluated the case in the second instance and confirmed the verdict handed down by the Third Court of the First Instance, which found NOEL DE JESUS BETETA ÁLVAREZ criminally responsible for the crime of murder against the life of Myrna Elizabeth Mack Chang. In arriving at this decision, the court found that the violent death of Myrna Elizabeth Mack Chang was established, by, among other evidence, a post mortem examination of the victim which confirmed the existence of deep knife wounds. Against the decision handed down by the court, a petition for Cassation was filed by the Private accuser in today’s matter, Helen Beatriz Mack Chang, and was decided upon on February 9, 1994, when the court confirmed the aforementioned decision and opened up proceedings against those accused today, Edgar Augusto Godoy Gaytan [sic], Juan Valencia Osorio, Juan Guillermo Oliva Carrera as possible intellectual authors of that crime. Within that context of ideas, throughout the oral, public proceedings, it remained effectively demonstrated with the death certificate, that Myrna Elizabeth Mack Chang died in a violent way on September 11, 1990 at 8:40 on 12th Street in front of building number 12-17 of Zone 1 of this city, from knife wounds penetrating the neck, thorax and abdomen, which caused hypo volemic shock, and throughout the entirety of the current trial, this fact never entered into the discussion, the existence and categorization of the facts as given in that earlier decision.

B. On the Criminal Responsibility of the Accused and Legal Qualification of the Crime Article 2 of the Penal Code, which refers to the applicability of the law, says: “If the law applicable at the time the crime is committed is different from any subsequent law, that law shall be applied whose provisions are favorable to the defendants even when there is a final decision and the convict is serving his sentence.” Given this, the court shall proceed to judgment on this issue in accordance with the law applicable at the time the crime was committed, since that law is most favorable to the defendants. Given that it is fully demonstrated by the reports submitted by the Presidential General Staff (EMP) that on September 11, 1990, the date of the violent death of Myrna Elizabeth Mack Chang, the accused Edgar Augusto Godoy Gaitán, Juan Valencia Osorio, Juan Guillermo Oliva Carrera, were occupying the posts of Chief of the EMP and deputy chief of the DSP of the EMP, respectively. With the statements of witnesses Clara María Josefina Arena Bianchi, Julio Edgar Cabrera Ovalle and Gerardo Humberto Flores Reyes it is established that on the dates of the occurrences the country was suffering an armed conflict between the army and the

94

insurgency, the consequence of which was the displaced population and refugees; being that it is here that the presence of the anthropologist Myrna Elizabeth Mack Chang emerged, who, in an enthusiasm for social investigation and specifically as part of the Association for the Advancement of Social Sciences in Guatemala (AVANCSO), released with AVANCSO a field study about this group of people [the displaced and refugees], and, as part of this group was stabbed to death. It is necessary here to ask ourselves: What is the motive to conceive, plan and order the execution of said person? How do the historical documents read as part of the hearings demonstrate this motive? The documents are: The Report of the Commission for Historical Clarification, Guatemala, Memories of Silence; the Report of the Inter-diocese Project for the Recovery of the Historical Memory, Guatemala, Never Again; and the book From War to War (de la Guerra a la Guerra), Guatemala. In this period, Guatemala was still suffering an armed conflict between the insurgency and the army. Consistent with the statement of expert Clever Alberto Pino Benamú, the armies of Latin America, among them Guatemala’s, operated under the doctrine of National Security, and according to General Héctor Alejandro Gramajo Morales, the Guatemalan army, under that constitutional doctrine, recognized an internal enemy and within this realm of ideas the army of Guatemala developed by means of a series of field plans that gave its members guidelines on how to act. This fact is confirmed by the analysis given by Doctor Héctor Roberto Rosada Granados. In the context of that armed conflict, the issue of the displaced populations and refugees was considered a “sensitive topic” under the concept that the army had of the same populations, considering them insurgents or sympathetic to the insurgency and this is where Myrna Elizabeth Mack Chang appears, undertaking field work in Quiché and Cobán, zones of major conflict. This work still didn’t end with her death which was the fatal consequence of her work as a witness. This theory was confirmed by Bishops Julio Edgar Cabrera Ovalle and Gerardo Humberto Flores Reyes by indicating that the anthropologist Mack Chang had mentioned to the former that she was being surveilled and followed, in her view for touching on a subject that the army did not want to be made public. According to the first and second level decisions and the decision at the appellate level, the army specialist Noel de Jesus Beteta Álvarez was declared criminally responsible for the crime of murder of the anthropologist Mack Chang. This person was at the time highly ranked in the Presidential General Staff (EMP) –an institution that forms part of the army in accordance with the Constituting Law of the Guatemalan Army and hence its configuration and organization are arranged in a military fashion whereby the principles of hierarchy, obedience and respect for the military laws reign, according to the expert Quilo Ayuso; an office that according to the expert Rosada Granados has a totally complex organization which was historically created for its use in a government of a military character. Upon entering office, Lic. Marco Vinicio Cerezo Arevalo attempted to imbue this body with a different character, restructuring it so that its sole function was to provide security to the President and his family and adapting it to the legally established procedures in the so-called Normal Administrative Procedure (PAN) and the Normal Operating Procedure (PON). The first action taken by the president was to rename the “Archivo” the Department of Presidential Security (DSP). President Cerezo named the

95

men on trial today to directorial posts, placing them on a list of people sent to the Defense Ministry: He named the accused Godoy Gaitán as Chief of the Presidential General Staff (EMP); Valencia Osorio as the Chief of the Department of Presidential Security (DSP); and Oliva Carrera as the deputy chief of this department. The specialist Noel de Jesus Beteta Álvarez served as a specialist in this department. According to the statement given by the analyst Catherine Temple Lapsley Doyle, in which she refers to the contents of declassified documents, reference is made to the fact that the EMP does in fact do intelligence work –this was confirmed by the expert Pino Benamú. Based on testimony from the witnesses Clara Maria Josefina Arenas Bianchi, Monsenor Julio Edgar Cabrera Ovale, Monsenor Gerardo Humberto Flores Reyes, Rubio Amado Caballeros and Justino Rodriguez Santana, it has been demonstrated that Myrna Elizabeth Mack Chang, for some 15 days prior to her death, was the object of stalking and persecution, acts which form part of elements belonging to an intelligence plan such as those elaborated and developed by the army, according to the testimony of the expert Pino Benamú. All of this leads us to conclude that the violent death of the anthropologist Mack Chang was a product of a plan previously worked out, a position confirmed by the statement given by the witness Jorge Guillermo Lemus Alvarado who related that the material author of this murder revealed to him in confidence that the execution of this person was the product of a plan and a personal order given directly by the Chief of the Department of Presidential Security (DSP) at the time, the accused Juan Valencia Osorio, who brought him the respective file and ordered surveillance and gave him the sign of death in the Roman style [ed.: thumbs down]. On this point we arrive at a level of judicial certainty with respect to those on trial: that the conduct of this defendant renders him criminally responsible as the author of the crime of murder of the anthropologist Myrna Elizabeth Mack Chang, in accordance with article 36 subsection 3 of the Penal Code and under article 132 of the same body of law, given that at all times even prior to giving the death order to Beteta, he took part in carrying out this crime in as far as at the same time as bringing the file to the material author of the act he gave the order to eliminate her, acts whose result, without his intervention, would not have been possible. This result in any case depended totally on his will, for with a single order the execution of the act could have been averted. As regards criminal responsibility of the defendant Edgar Augusto Godoy Gaitán, it is important to determine if indeed it is certain that in the chain of command within the EMP he is the Chief of said institution. Also, it has not been totally proven that the plan of execution of which we have spoken would have been conceived at the level of the EMP, and on that point it suffices to recall what was stated several times: that this institution was part of the Defense Ministry, which at that historical moment in which the execution of Myrna Elizabeth Mack Chang took place, the power was totally divided, according to the expert Hector Roberto Rosada Granados and by the very Vinicio Cerezo Arevalo who was Constitutional President of the Guatemalan Republic, and the army, via the Department of Presidential Security (DSP) had authority over the officials who worked there. There is one more element which creates doubt with regards to the participation of the defendant Godoy Gaitán: the fact that when the witness Jorge Guillermo Lemus Alvarado interviewed Beteta Álvarez one detects that he is being

96

persuaded to incriminate the same (Godoy), whereas the opposite occurs when referring to Valencia, where the suggestion is made directly. Consequently, in accordance with Article 14 of the Constitution of the Guatemalan Republic and Article 14 of the Criminal Procedure Code which contains the principle In dubio pro reo, that doubt favors the accused, we enter a verdict of not guilty. And as regards the defendant Juan Guillermo Oliva Carrera, who also has a direct relation to the other defendants as a subordinate within the chain of command, we absolve him of participation in the material authorship of the act, who indicated that he knew nothing about it. This is credible given that it is feasible his superior within the hierarchy (Valencia Osorio) in this case left out his participation, which is why he gave direct orders to the specialist Noel de Jesus Beteta Álvarez, and, there not existing any other proof directly or indirectly linking him to the perpetration of the act, this creates doubt with respect to who really worked out the plan to carry out the act, we are of the opinion that he be absolved for lack of evidence.

C. On the Legal Qualification of the Crime Article 132 of the body of law in effect in the year 1990 noted: Murder is committed by someone who kills another person 1) in cold-blood; 2) for a fee, compensation or on contract; 3) By means of on the occasion of a flood, fire, poison, explosion, collapse, or destruction of a building or other structure that can give rise to great havoc; 4) with known premeditation; 5) with cruelty; 6) with an impulse of brutal perversity; 7) to prepare, facilitate the consummation of or hide other crime or to ensure their results or the impunity for it or for its co-participants or for not having obtained the result that would have been sought when attempting the other punishable act. To the perpetrator of the murder there will be a sentence of 20-30 years, however, imposing the death penalty in place of the maximum prison, if by the circumstances of the act and of the occasion, the way in which it was carried out and the determinant motives reveal themselves to be of a great and particular danger of the agent. In the present case, with the statements given by the experts Clever Alberto Pino Benamú, Hector Roberto Granados and Catherine Temple Lapsley Doyle, it is clearly established that circumstances both prior to and subsequent to the violent death of the anthropologist Mack Chang, that it could only have been a product of a crime of institutional character which presented all the elements that accompany an intelligence plan such as: persecution, surveillance, extermination and subsequent elimination of proofs with the murder of one of the agents investigating the crime, Mr. Merida Escobar, acts which carry with them the aggravating factors of cold-blooded, known premeditation, cruelty and an impulse of brutal perversity and typify the crime of murder.

97

D. On the Punishment to Impose In accordance with the aforementioned article 132, to the perpetrator of the murder there will be a sentence of 20-30 years, however, imposing the death penalty in place of the maximum prison, if by the circumstances of the act and of the occasion, the way in which it was carried out and the determinant motives reveal themselves to be of a great and particular danger of the agent. In the present case, taking into consideration that the tried party [ed: defendant Valencia] has no prior criminal history and the aggravating factors are contained in the act itself, the motive of the crime which was determined as provoked exclusively by the activity that the victim took part in at the moment of the armed conflict that was considered a sensitive topic for the army and that the extent and damage occasioned cannot have any kind of reparation given that it is a question of the extermination of a life that was very useful to society. Given this, we are inclined to apply the maximum sentence of prison assigned at the moment of commission of the illegal crime, 30 years. Therefore: This tribunal, given all that has been analyzed, the cited laws and that which has been established in articles 1, 2, 6, 12, 14, 15, 16, 203 and 204 of the Constitution of the Guatemalan Republic; 1, 2, 4, 10, 11, 13, 19, 20, 35, 36, 41, 42, 44, 65, 132 of the Criminal Code; 11bis-14-19-20-21-24-24bis-40-43-48-70-160-161-162-163-165-166178-181-207-225-354-355-356-360-362-363-368-370-372-375-376-377-378-382-383385-386-387-388-390-391-392-395-396-397 of the Criminal Procedure Code; and ; 57, 141, 142 and 143 of the Judicial Body Law; 4 of the Law on Elections and Political Parties, HAS COME TO A MAJORITY DECISION, DECLARES: I)

It absolves the accused Edgar Augusto Godoy Gaitán and Juan Guillermo Oliva Carrera of the crime of murder, and considers them free of all charges;

II)

That the accused Juan Valencia Osorio is responsible as the AUTHOR of the crime of murder committed against the life and physical integrity of the anthropologist Myrna Elizabeth Mack Chang;

III)

For this crime he is sentenced to 30 noncommutable years in prison, that must be served in the criminal center determined by the appropriate sentencing Judge;

IV)

The accused Juan Valencia Osorio is suspended from his duties and his rights and politics for the duration of his sentence;

V)

As the accused are all in detention, they will stay there until the present case appeals have been exhausted;

98

VI)

No judgment is made as regards the civil responsibilities, as these were not requested on time and in due form;

VII)

The accused Juan Valencia Osorio is required also to pay all court costs;

VIII) As the current case is closed, please direct all relevant correspondence and the file to the sentencing judge for all consequent legal purposes. IX)

Thus duly noted

LICENCIADA MORELIA RÍOS ARANA DE VILLALTA PRESIDING JUDGE LICDA. IRIS YASMIN BARRIOS AGUILAR JUDGE LIC. CARLOS RUDY CHIN RODRÍGUEZ JUDGE (DISSENTING VOTE) LICDA. LESBIA NINETH OLIVA DE OROZCO SECRETARY.

99

Appendix Three LAWYERS COMMITTEE LETTER, AUGUST 27 2002

August 27, 2002 Lic. Alfonso Portillo Cabrera President of the Republic of Guatemala 6a. Avenida ‘A’ 4-41 Zona 1 Ciudad de Guatemala, Guatemala Fax: 011 502 253 0540 011 502 238 3579 Lic. Adolfo Reyes Calderon Ministro de Gobernación Ministerio de Gobernación 6a Avenida 4-64, Zona 4 Ciudad de Guatemala Guatemala Fax: 011 502 362 0237/9 Pres. Lic. Nery Saul Dighero Herrera Presidente Corte Constitucionalidad 11 Ave. 9-37, Zone 1 Cuidad de Guatemala, Guatemala Fax: 011 502 251 8215 Dear Sirs, On behalf of the Lawyers Committee for Human Rights, I would like to bring your attention once again to the case of Myrna Mack, the Guatemalan anthropologist murdered in 1990. The Lawyers Committee has followed this case with great interest for nearly twelve years, and, together with the law firm of Hogan & Hartson L.L.P., has played an active part in the proceedings before the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights. Indeed, this case has been of interest not only to the non-governmental community but to the government of the United States and other international donors because of its unique significance. The trial of the former army officers accused of ordering the murder of Myrna Mack highlights the triple challenge Guatemala has faced in promoting international standards of due process, in ensuring judicial integrity and autonomy in a highly intimidating atmosphere, and in ensuring that no one is immune to prosecution for serious human rights crimes.

100

As you are aware, nearly nine years ago Guatemala’s Supreme Court declared that the original trial of Noel de Jesus Beteta for the murder sufficiently established that superior officers shared responsibility with Beteta, and ordered that the proceedings continue to identify and try those additionally responsible. Although that has not yet occurred, in accordance with a judicial order issued in 1999 General Edgar Augusto Godoy Gaitán, Colonel Juan Valencia Osorio and Colonel Juan Guillermo Olivia Carrera are scheduled to stand trial on September 3, 2002, for their alleged roles in the murder. The delays and obstacles which have vastly complicated efforts to finally bring this case to trial are a disturbing reflection of the intimidation and violence confronting Guatemalan judges—in particular in cases which concern individuals backed by powerful institutions and interests. The progress that has been achieved in this important case is powerful testimony to the courage and conviction of the courts which have endeavored to review the evidence and determine legal responsibility. However, as you are well aware, this has come at an extraordinary cost: the dozens of instances in which judges felt compelled to withdraw from a case, to delay decisions, to misinterpret Guatemalan law, and to flout international standards in the face of the threats and violence. This violence has already cost the lives or livelihoods of police investigators, witnesses, and other jurists connected to this case. That fear—which is real and justified—is still at play, and threatens to irreparably obstruct the process as it nears this crucial juncture. We are extremely disturbed to have received reports that there may have been attempts to interfere with the decision-making of the Constitutional Court, as it convened to consider one or more motions filed by the defense, including Amparo No. 1190-2002. This amparo motion is crucial to the proceedings as it concerns the admissibility of several documents central to the case being put forward by the complainant, Helen Mack. It is also likely that the court’s decision on this matter will have significant bearing on other pending or future prosecutions of criminal human rights abuses. Our concern about possible pressure on the court is heightened by recent threats against one of the lawyers working on this case. According to reports received by the Lawyers Committee, Mack Foundation attorney Licenciado Roberto Romero received threats by telephone and his home was attacked on August 23. This attack was carried out despite a protective measures order from the Inter-American Court on Lic. Romero’s behalf. Moreover, it is our understanding that a meeting took place on August 21, involving representatives of COPREDEH and the National Police, in order to discuss the implementation of the protective measures order. During the meeting it was agreed that Lic. Romero’s house, along with two other locations, would be protected by the police. As you know, it is the obligation of the state to respect and ensure respect for basic human rights in Guatemala. The American Convention on Human Rights, to which Guatemala is a party, requires states to ensure that the judiciary is able to act independently and impartially, so that all persons can exercise their right to judicial protection (Article 25) and persons accused of committing a crime receive a fair trial (Article 8). Despite this obligation, attacks upon and threats against members of the

101

judiciary have been a serious and ongoing problem in Guatemala, in particular affecting cases involving investigation and prosecution for gross human rights violations by state agents. In this regard, we refer you to the report of the United Nations Special Rapporteur on the independence of judges and lawyers, Mr. Param Coomaraswamy, upon his mission to Guatemala in 1999 (E/CN.4/2000/61/Add.1, 6 January 2000). At that time, the Special Rapporteur found allegations of threats, harassment and intimidation of Guatemalan judges to be well-founded and cause for serious concern. We therefore call upon you to investigate any reports of judicial intimidation and to take measures to ensure that such intimidation is prevented in the future so that judges are not subjected to improper attempts to interfere with their deliberations. In particular, we urge the government to take steps to ensure that the courts will be able to consider all amparos presented relating to this case, including Amparo No. 1190-2002, fairly and without interference, taking into account all of the arguments put forward by the parties and the relevant domestic and international norms. With regard to the threats against and attack upon Lic. Romero, we trust that you will take immediate measures to ensure his safety and the safety of his family. In compliance with the order of the Inter-American Court, Lic. Romero and other representatives of the Mack Foundation must receive adequate protection and any attacks or threats made against them must be investigated thoroughly and the perpetrators brought to account. The Lawyers Committee and Hogan & Hartson, along with other human rights organizations, are continuing to monitor the Mack case closely. Respect for human rights and commitment to the rule of law in Guatemala require justice in this important case. Justice requires strong measures by the government to counter judicial intimidation and interference and to ensure that all parties involved in the case are able to fulfill their role in bringing an end to impunity. Thank you for your consideration of this important matter. Sincerely,

Michael McClintock Director of Program

102

Appendix Four EXTRACT FROM MINISTRY OF DEFENSE DOCUMENT ON THE PRESIDENTIAL GENERAL STAFF (ESTADO MAYOR PRESIDENCIAL)

103