The Dominion - Valerie Croft

Lies and War Crime

hillarybain — Wed, 23 Mar 2011 12:35:30 +0000

Guatemalan ex-military accused of war crimes held in Alberta prison

CHIMALTENANGO, GUATEMALA—Jorge Vinicio Sosa Orantes, ex-member of the Guatemalan special forces known as the Kaibiles, was arrested in Lethbridge, Alberta, on January 18, 2011. He was detained at the request of the United States; the US may solicit his extradition to face charges of immigration fraud.

If proven guilty of having lied about his role in the Guatemalan military on his US application for naturalization, Sosa Orantes could face up to 10 years in prison in the United States. Meanwhile, human rights groups in Canada and Guatemala are petitioning the Canadian courts to try him for war crimes.

Sosa Orantes has been implicated in the planning and execution of the massacre at Las Dos Erres, in the northern department of Peten, where at least 252 unarmed civilians were systematically killed on December 6, 1982. This massacre was carried out in much the same manner as the more than 650 massacres committed by the Guatemalan military during the country’s 36-year internal armed conflict, which included widespread rape, torture and the mass killing of men, women and children, most of whom were Mayan.

According to Aura Elena Farfan from the Association for the Relatives of the Detained and Disappeared in Guatemala (FAMDEGUA)—the plaintiff organization that since 2000 has been bringing forward a case against Sosa Orantes and 16 other ex-Kaibiles implicated in the massacre—it is important that he be tried for the more serious crimes against humanity, rather than for the lie he told US immigration officials.

“Of course that lie is important,” says Farfan. “But for there to be justice, it is important that he is not only judged for that lie, but for the serious violation of human rights in Guatemala.”

Even with an unprecedented amount of evidence, including survivor testimonies, exhumation records and the testimony of a repentant ex-Kaibil who took part in the massacre, Farfan does not believe the justice FAMDEGUA seeks is possible in Guatemala.

The Inter-American Court of Human Rights has found the Guatemalan government unwilling to live up to its judicial responsibilities to investigate and successfully prosecute those responsible for the massacre. The country is still characterized by widespread violence, while many of the intellectual and material authors—those who planned and those who carried out the massacres—retain high positions of political power in the current government and military.

Even though the Guatemalan Supreme Court issued arrest warrants in 2010 for the 17 ex-Kaibiles implicated in the massacre, Farfan believes this case is stuck in impunity. “It needs to be heard in a place where there does not exist the same danger of being bought off.” Such bribery, says Farfan “is likely to happen in Guatemala.”

Matt Eisenbrant from the Canadian Centre for International Justice (CCIJ) has called on the Canadian government to launch a full criminal investigation against Sosa Orantes.

“Usually, a trial in the place where the abuses occurred is preferable,” he says. “This should only be done, however, if all due-process guarantees can be protected and there are assurances that a fair trial can proceed without being tainted by outside influences.” The CCIJ is calling on the Canadian government to ensure that Sosa Orantes will be held fully accountable by conducting its own criminal investigation into possible war-crime charges, taking this into account when considering the extradition requests.

Legal support for the case first surfaced in 1994, after FAMDEGUA officially received an exhumation request from three families from the area. Within a year, anthropologists had found 162 complete skeletons in a 12-metre grave, 67 of which were from children under age 12.

According to a report released by Amnesty International in 2002, the findings of the exhumation matched up with survivors’ testimonies about the massacre; it involved first the mass and repeated rape of the women and young girls, followed by the killing of the children and then the women, many of whom were pregnant. The men were killed last. Anthropologists’ reports reveal that most of the victims were killed by a blunt object to the back of the head, after which they were thrown into the mass grave.

Both witnesses and FAMDEGUA have received numerous threats for bringing this case forward. Still visibly affected by the case, Farfan says that “[Sosa Orantes] did not have compassion for the victims who were asking not to be killed, not to be tortured.” She expresses the weight of the blood that was spilled in Guatemala, stating that the bodies of the young children and pregnant women should tip the scales of justice further than the lie Sosa Orantes told to gain US citizenship.

“If victims are to be satisfied and if we are to provide deterrence against such abuses happening in the future, perpetrators must be prosecuted to the fullest extent possible,” says Eisenhart.

Sosa Orantes was denied bail on March 9, 2011, by Albertan judge Suzanne Bensler who deemed him too much of a flight risk. His next court appearance is scheduled for April 20, 2011.

Valerie Croft is living in Guatemala, completing a CIDA internship with CEIBA—a Guatemalan environmental advocacy organization that works on issues related to climate justice, food sovereignty and the defense of territory.

Corn and Feet

Goldcorp Drilled by Shareholders

Moira Peters — Tue, 08 Jun 2010 09:28:38 +0000

Mining company challenged at AGM to respect host communities

TORONTO—Shareholders of Canadian mining giant Goldcorp Inc. got a glimpse—albeit brief—into the lives of Central Americans whose land is being exploited by the company for gold. Some even paid attention.

Representatives from communities hosting Goldcorp mines in Central America made their way from Honduras, Guatemala and El Salvador to address the company’s annual general meeting (AGM) in Toronto on May 19, 2010.

Shareholders learned about the devastating effects Goldcorp’s operations have had on communities in Central America. The presenters told of an increase in health problems, cracked houses, widespread social conflict and the criminalization of protest in their towns and villages.

Carlos Amador, a teacher from Honduras, challenged the company's reclamation process at the closed San Martin mine in central Honduras, which in 1999 displaced 14 families and contaminated water to the point beyond which even the World Bank recommended.

"Who will control the acid drainage? Who is going to clean up the water contaminated with heavy metals?" he asked.

The AGM was not an easy venue for the visitors to tell their stories. Goldcorp attempted to cut Javier de Leon of Guatemala short during question period when de Leon tried to explain the environmental, health and social devastation brought by a Goldcorp mine to his town of San Miguel Ixtahuacan. He had previously been given less than a minute to address the meeting. When a supporter of the visiting group refused to be silent—protesting that de Leon deserved to be heard after traversing a continent to address the meeting—President and CEO Chuck Jeannes relented and gave de Leon the platform.

All the presenters spoke of the need not only for effective and fair consultation with potentially impacted communities before mining operations begin, but also the consent of those communities.

To that aim, a shareholder resolution was brought forward by Kathryn Anderson of the Maritimes-Guatemala Breaking the Silence (BTS) Network, which called on Goldcorp to adopt a corporate policy on free, prior and informed consent (FPIC) by September 1, 2010.

FPIC is a central theme of the United Nations Declaration on the Rights of Indigenous Peoples (UNDRIP) and is the basis of Article 169 of the International Labour Organization, which states that before a mega-project—such as a mine or a hydroelectric dam—can begin on Indigenous lands, residents need to be consulted about the proposed project and to give their informed consent.

The Goldcorp operations influenced by Anderson’s proposed policy would impact not only Indigenous communities, but all communities dependent for survival on natural resources.

Specifically, the resolution calls on Goldcorp to respect UNDRIP as best practice with regards to FPIC rights; to note the legal difference between consultation and consent; to implement the proposed policy retroactively to ensure that all Goldcorp’s mining licenses were obtained in adherence to this policy; to cease all operations, expansions, and exploration where consent of the affected population has not been obtained by the state; and to apply this policy to any license with partial or full Goldcorp ownership.

“The shareholder resolution was brought forward because in cases like San Miguel Ixtahuacan [in Guatemala], we have seen the results of not having FPIC. Communities have not had the full disclosure of costs, benefits, and risks of open-pit gold mining,” said Anderson. “When a full discussion is not there, it creates an enormous amount of conflict.”

In its pre-AGM letter to shareholders, Goldcorp urged its investors to vote against Anderson’s resolution, saying the company would be launching its own human rights platform at the AGM.

In fact, just days before its AGM, Goldcorp released a Human Rights Impact Assessment (HRIA) of the Marlin Mine in San Miguel Ixtahuacan—the result of a petition by shareholders. Initial assessments of the HRIA by various NGOs, including Amnesty International, express concerns that affected communities were not invited to discuss whether or not the study would have been appropriate or beneficial. Although both a Goldcorp representative and an investor sat on the steering committee for the HRIA, no resident was given such a privilege. Meanwhile, both the communities and NGOs argued that the study would only increase social tensions in the already-fractured communities; the assessor, On Common Grounds, itself concluded that the study resulted in escalated social tensions and polarization between and among communities.

Shareholders representing 90 per cent of Goldcorp’s shares voted against Anderson's proposed resolution. She was surprised by the 10 per cent of shares in its favour, given that shareholders rarely vote against the company line. “We do not have an explanation for that yet,” she said. “Did someone advise a large block of shareholders to vote against Goldcorp in this instance? Or is it because people specifically read and heard our concerns?”

Although Goldcorp claims it participates in consultations with populations affected by its mines, company representatives refuse to articulate a detailed consultation process or put one into company policy. Furthermore, nowhere does Goldcorp claim to respect the rights of communities to say no to mining, which is a keystone of Anderson’s resolution.

When it ignored the results of community-organized consultations in 2005 in Sipakapa, a region bordering the Marlin Mine—where 11 out of 13 communities unanimously opposed the mine’s presence—the local government was pressured to address the issue. The municipality of San Miguel has since organized its own upcoming consultation. Goldcorp General Counsel VP David Deisley said the company is not legally required to respect the results of such a consultation.

Goldcorp in general, and Jeannes in particular, consistently deny FPIC is directly applicable to the company, arguing the laws for consultation and consent apply to governments, not corporations.

Nelly Rivera de Silva of El Salvador explained that despite a moratorium on all mining exploitation in her country, she will be directly impacted by Goldcorp’s proposed Cerro Blanco mine to be built in Guatemala several kilometers upstream of Lake Guija—a binational lake. The lake is the tributary of the Lempa River, the most important watershed in El Salvador. Another 13 mining projects line El Salvador’s border with Guatemala, and 42 line its border with Honduras.

Rivera explained that she came to Canada to address Goldcorp on home soil and to inform people of the local repercussions of gold mining.

Goldcorp’s eight-page glossy handout on Corporate Social Responsibility (CSR) states: “Sustainable operations are dependent upon good working relationships with the communities in which we operate...We believe our transparent approach to doing business is the only way to fully engage our stakeholders in a meaningful, mutually beneficial relationship.”

But Rivera thinks this company line is an insult to shareholder intelligence.

“Why wouldn’t you think something is not quite right when members of the affected communities are coming all the way to Canada just to have their voices heard?” she asked.

As he was leaving the meeting, a shareholder addressed one of the 50 protesters demonstrating outside the AGM, asking why they were “anti-employment.” His sentiments reflect a feeling by many Canadians that mining companies are effectively bringing development and prosperity to people who would be starving if it weren’t for opportunities from the North.

De Leon had a different story. He maintained that Goldcorp is making millions in profit at the expense of the social fabric in Guatemala, where community tensions and social conflict are direct results of the affected communities having no say about the open-pit gold mine.

De Leon has felt this tension point-blank. After receiving numerous death threats, he was shot at four times on April 19, 2010, a few days before his departure for Canada. He said the majority of such threats come from mine workers or people with personal connections to the mine. Feeling tense, vulnerable, and worried for his family’s safety, de Leon said that a majority of investors do not know or care about this reality.

“No shareholder wants to hear what we have to say. They only want to see the renewal of their investment,” he said. “No-one claims ownership of the damages done to the environment, to society, or to the politics of Guatemala.”

Referenda have been organized across Guatemala to address the lack of informed consent, but neither the national government nor the company recognizes these consultations as legitimate, even though in some cases 100 per cent of an affected population has voted against mining.

Although it wouldn’t legally uphold FPIC, Bill C-300, a private member’s bill tabled by Liberal MP John McKay, could create some legal options for communities impacted by Canadian mines.

The Canadian government provides political and economic support to Canadian mining companies like Goldcorp operating abroad, through embassy relations, tax incentives and investment support with public funds like the Canada Pension Plan. Bill C-300 would make this political support and public money contingent on Canadian companies meeting certain human rights standards—standards these companies have already agreed to in various voluntary principles on corporate social responsibility, many of which are found in the CSR standards for Export Development Canada.

The bill would establish a legal complaints mechanism allowing people who wish to report human rights violations to do so with the Canadian Department of Foreign Affairs and International Trade (DFAIT). If DFAIT concludes that a company's actions violate established guidelines for responsible behaviour, the company’s political and economic support from Canada would be withdrawn.

Bill C-300 is a watered-down version of recommendations made at the 2007 National Roundtables on Corporate Social Responsibility, which was approved by the Prospectors and Developers Association of Canada. Nevertheless, the mining industry has launched strong opposition to the bill.

Rare for a private member’s bill, C-300 has passed through two votes in the House of Commons, and is currently at the end of its committee stage. MPs have reported receiving more letters in support of C-300 than any other bill in recent memory. If it succeeds in the committee, the bill will return to the House for a third and final vote; and if passed, it will go to the Senate. Since the Conservative Party opposes the bill on the basis that it would hurt the image of Canadian mining companies and their global competitiveness, the bill will likely die in the Senate because of a Conservative majority.

All four Central American activists who flew to Canada to speak to Goldcorp’s shareholders were adamant that voluntary standards for Canadian companies do not protect against human rights abuses. Although they were all in support of Bill C-300, they continue to push for free, prior and informed consent to be a focal point of Canadian legislation.

Valerie Croft worked in Guatemala as an International Accompanier in 2008 and is active in issues relating to corporate accountability.

Cleaning up Goldcorp's toxic mess

Feliciano Orellana and Carlos Amador

Barrick Supported Police Who Carried Out Fiery Evictions in PNG

Moira Peters — Sat, 05 Jun 2010 05:22:55 +0000

Amnesty report confirms links between cops & Canadian mining company

TORONTO—Amnesty International (AI) recently made waves in human rights circles, publishing a new report focusing on Canadian mining giant Barrick Gold's role in violent forced evictions in the Porgera region of Papua New Guinea (PNG).

The publication marks AI’s first report detailing the human rights abuses occurring near a Canadian mine. Publishing such a report can be risky business; the threat of a lawsuit targeting individual journalists and publishers for reporting on the activities of extractive companies is not one that many NGOs can afford to face, and Barrick is known to take crippling legal action when challenged on its human rights record.

Although AI does not conclude that representatives of Barrick directly ordered the evictions, the international human rights organization does express its concern about the company's continued support for a police unit participating in illegal activities in the region.

The report, titled “Undermining Rights: Forced Evictions and Police Brutality around the Porgera Gold Mine, Papua New Guinea,” examines links between Barrick Gold and a special Mobile Squad of police officers which burned to the ground more than 130 homes in the Porgera region between April and July 2009. The report found Barrick Gold provided food, housing and fuel to the Mobile Squad during the period of the evictions, and continues to do so despite a PNG court ordering the retreat of the police.

The Porgera Joint Venture (PJV) gold mine is located in the Porgera region of Enga, a highland province of PNG. PJV has been in operation since 2006, and continues to be 95 per cent owned and operated by subsidiaries of Canada-based Barrick, the largest mining company in the world. The remaining five per cent is split between the Enga provincial government and select local landowners. Barrick had been exploring expansion of its mine site for two years, but ceased exploration one month before the evictions.

According to the AI report, in 2008 PJV produced 627,000 ounces of gold, worth approximately $US546 million.

Jefferey Simon, a resident and member of the Akali Tange Association—a human rights organization in the Porgera area that was formed in 2004 to document abuses at PJV—explained in an interview that there is a strong history of artisanal mining in the community, which has provided a source of income alongside subsistence agriculture.

When the government of PNG granted PJV exclusive exploitation rights to a large region known as the Special Mining Lease (SML) area, it effectively cut off the community's ability to support itself, according to Simon.

PNG's 1992 Mining Act states that "all land in the State is available...for exploration and mining and the grant of tenements over it." However, the country's constitution recognizes Customary Law, which dictates that all individuals—including unborn generations—have the right to use land and resources for livelihood and traditional activities. In 2000 the National Parliament enacted the Underlying Law Act, mandating the courts to pay greater attention to Customary Law when upholding the law of the country.

Under the pretext of addressing illegal mining activities and the general decline in law and order around PJV, a request was made by the Porgera District Law and Order Committee for a 30-member police unit to patrol the area. Instead, in April 2009, a 200-member elite Mobile Squad unit, typically sent to regions of high conflict and usually armed with assault rifles, arrived within SML, an area with some 10,000 Indigenous inhabitants.

According to AI's report, when police arrived in the area to begin Operation “Ipili,” PJV provided logistical support and conducted frequent briefings.

On April 27, 2009, police encircled houses in the community of Wuangima and proceeded to violently evict families from their homes and set fire to at least 130 houses.

According to the AI report, after refusing to leave his house, one man was locked inside while police set fire to his home. He escaped with the help of neighbours. One woman, while nursing her child, was struck on her shoulder by a police officer with the butt of his rifle.

Those who were away tending their gardens came home to find only the charred remains of their houses and their highly valuable livestock killed by police. Those who had been home met with violent confrontation: witnesses testify that police pointed their weapons at them, threatened and yelled at them to leave their houses. Others reported police officers shot at or near them.

At least three women independently testified to AI about being raped by police officers. AI is strongly pressing for further investigations into these reports.

In a meeting held December 3, 2009, between AI and Barrick Gold, the company insisted that PJV was only one of several parties that supported the April 2009 deployment of police to the area. Barrick denied having prior knowledge of police actions in Wuangima.

Barrick has publicly insisted that the buildings destroyed were nothing more than temporary shelters used by migrants to the area, and that they housed people participating in illegal mining activity.

However, AI's research provided significant evidence to the contrary. Taking lengthy testimonies of residents and religious leaders, examining photographs taken before and during the burnings, and relying on the physical evidence of the charred remains of the houses, AI concluded the buildings destroyed were solidly constructed with wooden frames and traditional woven bamboo walls.

The remains of established gardens and the existence of a church in Wuangima constructed in 2004 by residents provide further evidence that the community was not temporary. PJV surveyed the area in 2007 in the hopes of expanding the mine, and would have known the area was established with permanent homes.

According to the AI report, Barrick and PJV finally acknowledged in their meeting with AI that some of the houses in Wuangima were in fact occupied for quite some time. The company maintained, however, that it had not been in a position to authorize or dictate the activity of the Mobile Squad, and claimed it had no prior knowledge of the evictions.

Barrick Gold, like many other Canadian mining companies, claim they support strong human rights standards, and their operations fully support the Voluntary Principles on Security and Human Rights, a non-binding agreement signed by governments, companies, NGOs and observer organizations.

These principles dictate the company must document and report to the appropriate authorities cases where physical force is used by public security, as well as record and report any credible allegation of human rights abuses by public security. In addition, companies should urge an investigation and support action to prevent recurrence of such physical force.

Barrick maintains it did not know the intentions of police. However, according to the AI report, PJV had almost daily communications with police. PJV in fact participated in a police briefing meeting the morning of the evictions. Barrick told AI that PJV employees saw smoke only after the buildings were burning. Photos taken during the raid show PJV employees watching from the mine site.

According to the report, the General Manager of Corporate and Legal for PJV contacted the Commander of the Mobile Squad, but after his being told the evictions were legal there were no further investigations on the part of PJV or Barrick.

Corporate accountability is a large focus within Amnesty International Canada (AIC) for the next several years.

“One of the challenges of researching community concerns that relate to large corporations is the fear of a lawsuit or some form of legal action,” said Ian Heide, the coordinator for Business and Human Rights for AIC. “The complexity of the situation in terms of government responsibility versus corporation responsibility or obligation means that AI needs to be sure of our research before going public."

AI has good reason to be careful. Noir Canada—edited by Alain Denault and the Collectif Ressources d’Afrique and published in French out of Montreal—details the role of Canadian companies operating in Africa with the support of the Canadian government. In that particular case, lawyers for Barrick Gold claimed there were inaccuracies in the book’s detailing of Barrick’s role in the 1996 massacre in Bulyanhulu, Tanzania, where more than 50 small-scale miners were buried alive. Barrick Gold filed a SLAPP lawsuit (Strategic Lawsuit Against Public Participation) against the writers, editors, translators and publishers of Noir Canada in order to block the translation of the book into English. Barrick Gold has also sued The Observer and The Guardian over articles they published about the Bulyanhulu massacre.

Simon explained the importance of the AI report. “Both the company and the state are bonded for development,” he said. “The only way to express ourselves is through media and connecting with international NGOs who can carry out adequate research and produce reliable reports.”

While acknowledging the quick response by AI—the report was researched and released within eight months of the evictions—Jethro Tulin, another resident of Porgera, thinks the report could have gone further. According to Tulin, there is no room for doubt that the company was responsible, but this was not made clear in the report. He maintains that even if AI did not have proof that Barrick was directly responsible for ordering the forced evictions, they could have recorded opinions of witnesses and made stronger recommendations to Barrick.

“AI has a reputation for being fair and impartial,” responded Heide, “so we only name governments and companies when we are certain that what we are saying is accurate and fair.”

Simon and Tulin agree with AI's report in its clear statement of the unanimous demand by people living near Barrick’s Porgera mine to be relocated to areas outside the SML.

AI has called on the Government of PNG to investigate the evictions and ensure that alternative accommodations and adequate compensation are provided for those who have been displaced.

Valerie Croft worked in Guatemala as an International Accompanier in 2008 and is active in issues relating to corporate accountability.

Mines causing environmental devastation in Papua New Guinea

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.

****

* 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

Disputed Property Sale in Guatemala Results in Death Threats, Charges

Moira Peters — Sun, 05 Jul 2009 05:41:45 +0000

Canada's Goldcorp agrees to negotiate; police, military arrive instead

TORONTO–The Inter-American Commission on Human Rights received an urgent request this month that precautionary measures be taken to protect Guatemalan families as Goldcorp, the Canadian gold mining company that owns the controversial Marlin mine in San Miguel Ixtahuacan, expands its operations in the mostly Indigenous Western Highlands.

The Association for Integral Development of San Miguel Ixtahuacan (ADISMI) filed the request on June 12, 2009, following a confrontation between residents concerned over water resources and Goldcorp, acting through its Guatemalan subsidiary, Montana Exploradora.

In an effort to protest what they see as an illegitimate property sale, residents of Saqmuj, a community in the village of Agel, occupied the land on June 10 in hopes of negotiating with Goldcorp.

Company officials returned to the site on June 11 and signed an agreement stating their intention to address community demands, to withdraw their equipment, and to return the morning of June 12.

According to reports from the region, six national police units and two special anti-riot troops arrived in Saqmuj, allegedly to protect Goldcorp officials. When company representatives did not return on June 12, anger at having been stood up and increased tensions among the protesters led some of those occupying the property to set fire to company equipment.

The Guatemalan police and military (10 police units, two micro buses and five or six pickups—50 to 75 individuals in full), along with District Attorneys and Montana Exploradora officials, arrived in the region on June 15, surrounding the offices of ADISMI, while Goldcorp filed charges against seven local leaders.

This is not the first time Goldcorp has laid charges against individuals opposing mining activities. In 2007, the company filed charges against seven men for their involvement in organized opposition, followed by another set of charges in 2008 against eight women.

Tensions have been high in the area since 2005 when Montana Exploradora began extracting minerals from the Marlin mine without the full, prior and informed consent of residents. In accordance with Article 169 of the International Labour Organization, which was ratified by Guatemala, international companies wishing to participate in resource extraction must first receive consent from those affected by the proposed operation.

Various democratic referenda have been organized since 2005, but neither Goldcorp nor the Guatemalan government has accepted as legitimate the near-universal community opposition to the mine. Since then, those living nearby claim an increase in sickness, water contamination and damaged houses due to the gold mine’s mainly open-pit operations.

As Agel borders Goldcorp's Marlin mine, residents of Saqmuj are gravely concerned about the company’s plans for further mineral exploration in the area. According to reports from the region, Goldcorp has used intimidation tactics to convince local landowners to sell and one community member has sold his land to the company.

Families of Saqmuj assert that because its operations will negatively affect the entire community, the mine proposal must have community consent before it can operate. They claim the community as a whole does not support the presence of the mine and therefore Goldcorp does not have exploration rights.

According to a call to action sent to national and international solidarity networks, released by the Network in Solidarity with the People of Guatemala (NISGUA) and Collectif Guatemala: “The families fear that selling this land puts at tremendous risk the integrity and access to at least three water springs on which families in Saqmuj depend.”

Despite reports of disagreements within the family that sold its land and significant opposition in the community, Montana Exploradora moved company equipment onto the property on May 19 to begin exploration.

Since the June 15 confrontation, locals have witnessed further intimidation, while some have received threatening text messages and phone calls. In particular, Javier de Leon, Director of ADISMI, has received four death threats, including threats against his wife and children.

The events in Agel are not isolated; rather they are part of a larger pattern of conflict when extraction companies begin operations on claimed lands. In 2005, a man was killed while taking part in a blockade of mining equipment destined for the Marlin mine (then owned by Glamis Gold). A Goldcorp-funded development committee in Agel cut off running water to the home of one opponent to the proposed mine in Saqmuj. Organized resistance is frequently met with militarized oppression, while local leaders are threatened and others intimidated.

Valerie Croft is a freelance journalist living in Toronto. She worked as an International Accompanier in 2008, in the region of San Miguel Ixtahuacan.

Marlin and Man

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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