The Dominion - accompaniment

Justice: Transparency or Incarceration?

Moira Peters — Mon, 07 Dec 2009 06:08:31 +0000

150 years for forced disappearance a precedent, families not satisfied

TORONTO—An historic verdict was reached in Guatemala’s first tried case of forced disappearance, leading to the conviction of ex-military commissioner Felipe Cusanero Coj*, with a sentence of 150 years in prison.

Eleven witness testimonies accompanied evidence including bones from clandestine graves found around the military compound, and historical records and reports of the nature of forced disappearance. On August 31, 2009, President Judge Walter Paulino Jiminez Texaj, representing the Criminal Court of the Department of Chimaltenango ruled that Cusanero’s “innocence was destroyed,” and sentenced him to 25 years in prison for each of the six cases being tried.

Charges were brought against him April, 2003 for crimes he committed between 1982 and 1984 while acting as Military Commissioner in the region. The Centre for Legal Action in Human Rights (CALDH) and the Association for Families of the Detained-Disappeared of Guatemala (FAMDEGUA) began the process as joint plaintiffs to the witnesses.

Several years later, the case made it to court March, 2008. The trial was stalled, however, after Cusanero claimed his constitutional right not to be tried retroactively was being violated, since his crimes were committed before Guatemala recognized forced disappearance as illegal in 1996.

After a lengthy delay in Cusanero's case, the Constitutional Court made an historic ruling when it declared that since the very nature of forced disappearance makes it an ongoing crime, Cusanero should be fully tried for it. (Since no bodies have been recovered, and Cusanero refuses to give further information about what happened and the whereabouts of the bodies, the victims are still considered “disappeared.”) The Court ruled that it did not matter when they were disappeared, but more importantly that the crime was continuing—it was being committed in the present.

Following the verdict's reading at the Constitutional Court, the case returned to the Court in Chimaltenango, where Jiminez Texaj concluded there was sufficient evidence to lead to a conviction of forced disappearance.

The implications in the judge's conclusion are deep. When the 1996 Peace Accords were signed, political amnesty was given to all military members for crimes they had committed during the war. (Without this clause the accords wouldn’t have been signed.) However, crimes against humanity—such as forced disappearance—are outside this amnesty law and can be tried.

Cusanero became the first person in the country to be tried for a crime against humanity. At the same time, he was a low-level military commissioner. Rios Montt, one of the authors of the genocide, enjoys political immunity by being a member of Congress.

Although many human rights organizations are claiming this to be a major step forward in the struggle for social justice in Guatemala, the witnesses' reality is much different.

For many, the hope in bringing the case forward was to find out information about their loved ones. “How is it important to us if he goes to prison?” asked Hilarion Lopez, father of one of the disappeared and a witness in the case. “We have always wanted to know where our loved ones are and what happened to them. But he never told us.”

Lack of information about those disappeared leaves families imagining horrors of rape and torture, and, on the flip-side, leaves room for the (unfounded) hope that their loved ones may still be alive. The nature of the crime creates such a degree of uncertainty that families are incapable of moving past or healing from its trauma. Particularly in cultures where proper burial rites are of extreme importance, the inability to lay individuals to rest leaves families in a perpetual state of paralysis and grief.

In a statement made during the reading of the verdict, Jiminez said, “For all of the cultures and religions present in Guatemala, it is almost inconceivable not to grant dignity to the deceased; it violates the dignity of everyone. For the Mayans, this phenomenon is of particular importance due to the central relevance in their culture of the active link between the living and the dead.”

He continued by describing the findings of a report made by the Guatemalan Commission for Historical Clarification (CEH), stating that the lack of information about the disappeared continues to be an open sore in the country. “The CEH considers locating and exhuming the clandestine graves where the bodies are buried to be an act of justice and reparation, while being a fundamental step in the road to reconciliation."

Echoing these sentiments in a news conference the day after the verdict, Lopez stated, “[Cusanero] should ask forgiveness of the people of San Martin, of the community of Choatalum. I am really upset because my son is still not returned to me. And I want justice....I want to bury him in the cemetery so that I can bring him flowers and candles.”

Despite the seemingly successful verdict, it doesn’t go without notice by the witnesses that what means most—information—will likely die with Cusanero in prison.

Even so, the verdict and declaration by the Constitutional Court open doors to the possibility of trying other crimes against humanity which took place during the armed conflict.

According to representatives from CALDH, the legal organization representing the witnesses in the Choatalum trial, several other cases that have gone through the courts in Guatemala should have been tried as forced disappearance. Instead they were reduced to charges of kidnapping. Kidnapping is a much less severe crime with a maximum sentence of eight years, compared to 40 for forced disappearance.

Judges often try the accused for kidnapping instead of forced disappearance, says a representative from CALDH, because it won’t implicate the State. “[It is easier to say that] it was just some senseless members of the military who were responsible for each individual crime, and that it doesn’t have anything to do with the subsequent military leader, or the whole chain of command.”

According to CALDH, kidnapping can be an individual crime, whereas to be classified as forced disappearance, proof of a systematic plan, implemented by the state to use forced disappearance as a terror tactic, is required. The fact that the State has been implicated in a Guatemalan Court for its role in creating and facilitating a culture of forced disappearance might have widespread implications for the intellectual authors of the genocide.

Written with files from Amanda Kistler, an international human rights observer with the Network in Solidarity with the People of Guatemala (NISGUA). Amanda currently lives in Guatemala City. Valerie Croft is a freelance journalist living in Toronto. She worked as an International Accompanier in 2008, in the department of Chimaltenango.

For more on precedent-setting court cases in Guatemala, read Guatemalan Court Sets Precedent in the Case of Israel Carias by Amanda Kistler, and Valerie Croft's Disappeared Before the Courts.

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* Cusanero was the military commissioner in the community of Choatalum, in the municipality of San Martin Jilotepeque in Chimaltenango, during Guatemala’s internal armed conflict that took place between 1960 and 1996. The conflict was characterized by widespread massacres, scorched earth policies, the forming of civil patrol units, and genocide against the Mayan indigenous peoples. In addition, the use of “forced disappearance” was employed as a common terror tactic.

Forced disappearance is the kidnapping of an individual by military or paramilitary forces after which they are often raped or tortured, and eventually murdered. By selecting individuals arbitrarily, it heightens a climate of fear and uncertainty. A UN-sponsored Truth Commission found that 45,000 people were disappeared in Guatemala during the armed conflict.

Justice Photograph

Justice Inhumation

Disappeared Before the Courts

Moira Peters — Fri, 09 Jan 2009 10:06:48 +0000

Internationals accompany witnesses to forced disappearance in Guatemala

TORONTO, ONTARIO – The first case of forced disappearance ever to be heard in Guatemala is currently sitting on hold in the constitutional court.

Six charges of forced disappearance have been brought forward from the community of Choatalúm in the municipality of San Martín Jilotepeque against ex-military commissioner Felipe Cusanero Coj. He has been accused of disappearing many community members while he acted as a military commissioner during Guatemala’s 36-year armed conflict. However, six specific cases are being brought forward for crimes committed between 1982 and 1984. Like so many others who collaborated with the army during the armed conflict, Cusanero enjoys a position of political power: he is the current mayor of Choatalúm.

This trial marks a milestone for social justice and reconciliation in Guatemala, as the trial’s witnesses are the first in the small Central American country's history to give their testimonies of forced disappearance in front of a judge.

Disappearance is a terror tactic that was used in many of the "Dirty Wars," which were wars against the general population in the name of protecting capital and the oligarchy in Latin America. Some argue that forced disappearance first began to be used as a mechanism to systematically terrorize the population during the internal conflict in Guatemala. There are nearly 50,000 people who are still disappeared in Guatemala.

The case has now reached a standstill in the constitutional court, and may be there for a long time to come. The defence for Cusanero argues that his client should not stand trial for felonies he may have committed before they were recognized as crimes. Forced disappearance was only recognized in 1996 after the Peace Accords were signed, and is non-retroactive, and therefore, the defence argues, the trial is unconstitutional.

Those bringing the case forward reject this argument principally based on the nature of forced disappearance, arguing that since the bodies have not been recovered, it is an ongoing crime. Cusanero is continuing to perpetrate the disappearances as he is unwilling to tell families where the bodies are buried.

The witnesses are being supported by the Association of Relatives of the Detained-Disappeared of Guatemala (Asociacion de Familiares de Detenidos-Desaparecidos de Guatemala – FAMDEGUA). According to Aura Elena Farfan of the organization, people do not want revenge, but, more than anything, to know where their loved ones are.

“This is why we are motivated, all of the family members. We want [Cusanero] to tell us where he left them. I consider forced disappearance to be the worst practice. It is the worst because you live with an uncertainty; you live with a deep pain.”

As part of the agreement of the Peace Accords, an official investigation took place into what had occurred during the war. As a result, the Historic Clarification Committee (la Comisión de Esclarecimiento Histórico – CEH) released a report detailing 6,159 reported forced disappearances during Guatemala’s armed conflict. However, the report also indicated that those numbers may be as high as 45,000. Those disappeared were most often taken from their homes in the middle of the night to torture centres or military compounds, never to be heard from by their families again.

The Human Rights Office of the Archbishop of Guatemala also conducted its own investigation into the war and produced the REMHI report (el Proyecto de la Recuperacion de la Memoria Historica). After gathering thousands of testimonies from Guatemalans affected by the war, the REMHI report found several commonalities in those affected by forced disappearance. The practice is used to provoke terror in family and community members, while leaving families incapable of properly grieving or healing, a result of the absence of information about the fate of those disappeared.

Years later, when the process of exhumations began from within military compounds, mass graves were found with bodies showing signs of extreme torture and mutilation, with many still blindfolded with their hands tied behind their backs. The knowledge that this was a likely end for loved ones disappeared has wreaked emotional havoc in Guatemalan communities.

The report is titled “Never Again.” It describes the tactics used by the Guatemalan military during the conflict, which, on top of forced disappearance, was characterized by large-scale massacres, torture, rape and other forms of violence against women, and scorched earth tactics. Characteristic of Guatemala’s armed conflict was also the formation of “community patrol units.” By being forced to participate in these units, many individuals committed crimes such as massacre, rape and torture against their own community members and against people from neighbouring communities. Refusal to participate in these units led to execution or disappearance; however, for some it led to abuse of power. These patrol units lasted long after the Peace Accords were signed and the power structures created by them long outlast the war and continue to deeply divide communities.

The case of Choatalúm is one such community. Most of the disappeared were forced from their homes in front of their families and taken to the local military compound. According to testimonies from the witnesses, family members pled for days with soldiers to give them information about the disappeared, but were told nothing, except that those in question were “bad seeds.”

According to Farfan, the human rights community in Guatemala is very concerned for the safety of the families involved in the trial. “[The families] live close to [Cusanero],” she says, “and we really don’t know the reaction of his family the moment the judge hands out a sentence...I think that the people and families will be left very vulnerable if this case takes [Cusanero] to prison.”

She explains that FAMDEGUA and the witnesses have taken advantage of opportunities presented by international accompaniment organizations like Acompañamiento Guatemala (ACOGUATE) and Peace Brigades International (PBI), as well as those in national and international organizations willing to act as witnesses.

ACOGUATE is an international organization that accompanies Guatemalan human rights organizations and defenders, and is currently accompanying the witnesses in the case of Choatalúm. According to Caren Weisbart, the co-ordinator for ACOGUATE, “Accompaniment provides a political space for people to choose how they want to defend their rights and carry out their socio-political work.”

Accompaniers provide a physical international presence that serves to dissuade attacks against Guatemalan human rights defenders. By playing on the desire of the Guatemalan government to maintain a positive international image, this visible foreign presence acts to broaden the space wherein local human rights defenders might not otherwise be able to work safely. Threats and intimidation come from those who have good reason to believe their attacks will not be punished by the Guatemalan justice system. The introduction of organized foreign presence provides a network of solidarity that acts as a form of protection.

Accompaniers document attacks that do occur and, according to Weisbart, this information is then transmitted to international solidarity networks, international human rights organizations, local government and civil society organizations and key embassies in Guatemala.

Spreading this information has become increasingly important, as attacks have increased in 2008. Between January and June, 109 attacks against human rights defenders were registered; 58 of those occurred in the month of May alone.

“In the Attorney General’s office on Human Rights where attacks against human rights defenders are publicly registered, there is virtually a 100 per cent impunity rate. Whether you’re a ‘common criminal’ or an ex-governmental official you can literally get away with murder, as is the situation here in Guatemala,” says Weisbart.

According to her, a big strength of international accompaniment in Guatemala is that it allows for internationals to work directly with human rights defenders in remote areas of the country. “The struggles of people who live in the countryside are different from those who live in urban areas,” she says. “It is a complex struggle to understand because it is based on more than 500 years of repression, racism and, especially in the Guatemalan political climate of today, it is characterized by a complete lack of access to the justice system.”

Although the case of Choatalúm is a significant advance for human rights in Guatemala, it is still a trial against a low-ranking ex-military commissioner, while the engineers of the genocide rest easy in a country characterized by impunity. Nevertheless, the trial of Choatalúm has the potential to set a precedent in forced disappearance cases, thereby opening the door to future cases targeting individuals intellectually responsible for those crimes.

“Every struggle is such a struggle that you need to rejoice and have a perspective,” says Claudia Samayoa from UNIDAD, a Guatemalan organization promoting human rights defenders, regarding the trial. She says that people are taking the trial seriously and it is likely that the large increase in attacks against human rights workers and defenders in May is directly linked to the case of Choatalúm, which began in April, as well as similar advances.

Moving forward and out of war, a country must embrace truth, justice and reconciliation, but, Samayoa says, “Truth must come first.”

According to Samayoa, the REMHI report had the potential to infuse truth into the mainstream in Guatemala. After the report was published, however, the government rejected it on the grounds that in its conclusion it stated that a government-sponsored genocide had occurred. The government refused to accept that any such event had happened without the full trial of those implicated – namely Lucas Garcia and Rios Montt, Presidents at the height of the genocide. Garcia has since died without facing trial and Montt currently holds a position of political immunity in his seat in the Guatemalan Congress. This official rejection of the report prevents any form of justice or reconciliation from happening.

Paralleling the situation in Guatemala to Canada’s past persecution and massacre of indigenous people, Samayoa says, “The fact that Canada is still dealing with its past shows that if it is not properly addressed, with truth, justice and reconciliation all playing a strong role, it will continue to resurface.”

Farfan from FAMDEGUA agrees and says it is important to set a precedent in the case of Choatalúm. If this trial were to end in a conviction of Cusanero, it may open doors for future cases against the material authors to reach trial. However, as the case of Choatalúm continues to be at a standstill in the constitutional court, it may prove to be another example of the extent of impunity in the country.

Referring to those disappeared, Farfan says, “We cannot forget them; they are with us each moment in every place we are. They are present with us, and make us stronger in the face of threats. This has made us stronger...to look for the 45,000 Guatemalans who are no longer here. This is what moves us, to continue with the case of Choatalúm, and we have hope that the constitutional court will resolve the case in the name of human rights and not for political reasons.”

Valerie Croft volunteered as an international accompanier with ACOGUATE from February to July 2008, and accompanied the witnesses in the Choatalúm case.

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