FRANK LA RUE: Thank you so much. It’s really a big honor and a pleasure to be here and speaking at the Holocaust Museum.
We are beginning this new sort of experience in Guatemala of trying to seek justice for one of the most horrendous crimes that can be committed, the crime of genocide. When we began this project, which was more than 4 years ago, it was just sort of a very remote dream, and essentially based on the fact that we thought that Guatemala had suffered one of the worst holocausts in the history of mankind and it had not been even recognized publicly.
After we began this project 4-1/2 years ago documenting the genocide, there was the peace process in Guatemala, which brought about, in 1994, as a matter of fact, one of the agreements was to establish what’s called the Historic Clarification Commission. By the way, the irony of that name is that the military in Guatemala was scared of calling it the Truth Commission. People were so scared of the name “Truth” that they wanted to relativize truth, and that’s why it was called such a weird name as Historic Clarification Commission. The name was much longer. It was the Commission on Historic Clarification of all the Acts of Violence Committed Against Guatemalans During the 30-Year Armed Conference. It was a horrendous name, and eventually was reduced to Historic Clarification Commission.
Equally, at the same time, the Catholic Church in an interdiocesan effort began its project on the Recuperation of the Historic Memory, which was basically the same idea, but more from a pastoral experience from their relationship to the local communities, especially the rural communities, where many of the catechists still worked. Many of them had suffered the violence and the persecution. They could document from a more existential point of view, more from an oral history point of view, what was the reality of these communities during the 30 years of conflict, the 36 years of war, as a matter of fact.
Convinced that we were on the right track, like I said, we had already begun this project. But we thought that it was really important to bring about light to these cases. Eventually the two reports came out. The Catholic Church report, the RHME, it was called. The “Recuperation of the Historic Memory” was published in 1998, and two days later Bishop Juan Gerardi, the coordinator of the project, was murdered in Guatemala violently. Now there has been a decision in the courts, in the first-degree courts, condemning three military officers, or three military personnel, one of them from what’s called a presidential high command, presidencial, of that period.
A year later, by 1999, in February the Historic Clarification Commission Report came out. Professor Tomaschat, who was the coordinator of the Commission, presented it to assistant secretary general of the UN Alberto Sotoho, who at the same time presented it over to the government. We would strongly suggest to people, there is a very brief summary of the conclusions and recommendations of this report, which has a website within the United Nations, or you can get it from the United Nations in all languages of the institution.
But for us, it was clear that one of the conclusions and one of the recommendations were very directly addressing this issue. One was that the Truth Commission did come to the conclusion that there had been genocide committed in Guatemala as a crime, especially from the year 1981, from October 1981, all the way through 1982, 1983. This was a lapse of two governments. In his mandate, the Commission was prevented from naming names of those responsible, but it could address different other issues. You could say the military; you could talk about institutions; you could talk about what types of crimes; you could talk about regions; or you could talk about timing in years. So by defining the timing, it was very clear, although they don’t mention the names, that they were referring to the governments of General Romeo Lucas Garcia and General Efrain Rios Montt. That was in the conclusions.
In the recommendations, the Truth Commission comes as one of the recommendations, strong recommendations, that in order to really achieve transition in Guatemala, there has to be justice addressed to some of these issues, especially to the worst crimes. Now that Paul is moving over to the Institute for Transitional Justice, the concept has been around; I remember discussing this with Neil Kritz specifically from USIP, who actually made a big publication on justice in transition, a big book. The concept is around that when a society moves in a leap in history from war to peace or to some form of social transition, there has to be some symbolic forms of justice.
The Truth Commission in Guatemala established there had been over 200,000 victims. We don’t expect and we don’t believe that it can be possible to prosecute all those responsible for those 200,000 cases. No legal system in the world would stand that amount of cases and that sort of workload. But what is important is that some of the worst cases, the most horrendous cases, in a symbolic way be brought to trial to prove to the people of the country -- in this case, Guatemala -- that, yes, we are moving into strengthening the rule of law into making justice a reality, into addressing the plight of victims.
The same way that the victims of the past can address justice, people in the present or the future can begin believing or using the justice system. This is key, because what we want to address here is the fact that the victims of genocide, which were many in Guatemala, have an absolute right to bring this case forward. But also we want to raise another issue, which is that the peace process in Guatemala, the transition to peace and democracy in Guatemala, also needs this case to be successful. Beyond the victims themselves, it’s a national reality, a national necessity if we are to believe that the peace process is real, if we are to believe that transition in Guatemala is possible.
This is why we engaged with the communities in trying to persuade them in presenting this case. We’re very clear that our role is a role as legal advisors. We want to make it very clear, we try as much as possible -- and I don’t remember any case at this moment -- that we don’t file cases in the name of our institution. The Spanish people called it CALDH, the Center for Human Rights Legal Action. We don’t believe it’s the role of NGOs, human rights NGOs, to be the plaintiffs and to try to raise their image and international reputation. It is our role to give technical advice and accompaniment to those communities and those victims that do want to reach some form of redress, and that is how we see it.
These cases were presented by 21 communities during the Lucas Garcia government that suffered genocide and 11 during the Rios Montt. Obviously there were many more, but these are the 21 communities we have been in touch with that have been organized to the extent that they can make a decision of this nature.
Our role goes beyond only the legal technical advice. It’s also a role of support of these communities. These communities have decided to form an association which is called Justice and Reconciliation, JURE. We have helped them in forming this association and through the association in presenting this case now.
So I reiterate very clearly, this is a demand coming from the victims, and our role is a role of accompaniment of legal counsel.
At the same time, I must say that this is a case that interests everyone in Guatemala and everyone who is really interested in justice and peace in the country. And there are many questions that are raised. Number one is, why was this case presented in Guatemala and not abroad? There are cases like was being mentioned. One can try to apply through universal jurisdiction cases. We know that in Spain, there is a case presented by Rigoberta Menchu, the Nobel peace prize winner, and the Menchu Foundation and other victims against the Rios Montt government. In Belgium, there are the families of two victims of Belgian missionaries -- as a matter of fact, one priest and one lay person -- who have decided to go to court in Belgium because of the murder of Belgian citizens by the Lucas Garcia regime.
Now, we could have gone either to Spain or to Belgium or to other countries that recognize universal jurisdiction. But we believe that there’s a point in principle we wanted to mark. Number one is that we wanted to make the Guatemalan legal system accountable. If we decide to go internationally without trying in our own country, it would have been a signal of failure. It would have been as if we were giving up in the possibility of having justice at all. So we don’t accept the argument that it’s better to go internationally. We may have to go to an international venue eventually, to the American system or to some individual legal system in a particular country. But that, only when justice will be denied in the country itself. We believe that because of the system itself, but also because of the peace process, it was our duty to try. And for the benefit of the victims, all victims of cases cannot go to Spain or cannot go to Washington to the Inter-American Human Rights Commission or cannot go to Belgium. Victims in Guatemala have to believe and have to understand that the legal system is for them, and that justice works for them equally as for any other Guatemalan. This was the basic principle in filing the case.
Of course, we don’t know whether we will have success or not. No one can define that. We believe we have a very strong case, and there is no reason why it should not be a successful case. But obviously, many political reactions can occur. But we’re willing to confront them, and if need be, like I said, we’re willing to go to an international venue, but when that moment arrives.
Secondly, I think it’s important to mark the timing. Why now? Well, we’re doing it now partly because it had some degree of coincidence with the Truth Commission reports, with the RHME from the Catholic Church, and with the Truth Commission. We began before they did, and we didn’t know exactly when those reports were going to be ending. But understanding the dynamic of Guatemala at that moment in the peace process, we were already researching these violations as everyone else began doing the same -- the church, United Nations, and all the other bodies -- trying to document the past. We were exactly at the moment of transition from war to peace, from the armed conflict of 36 years to peace.
So in our mind, we were thinking in the same terms as everyone else: you have to make the past accountable. We always said, “A country that cannot assume and rationalize their past will not be able to plan their future.” I mean, people keep on talking about “Let’s talk about reconciliation, let’s talk about the future, so let’s have a period of forgive-and-forget.”
We don’t believe this is true. In order to prepare the future, to have a better future, you may have to forgive, but never forget. This is very important. We believe that you have to keep remembering. This is why it’s so important to mention this in this museum. I mean, the Holocaust Museum is in the memory of something that happened more than 50 years ago, but very important to remember and to keep on remembering generation after generation so it does not happen again. We feel exactly the same way in Guatemala. We cannot allow people to forget what happened.
It is true that in Guatemala, most of the victims were anonymous Mayan indigenous population from the highlands. It is precisely that reason why we have to create a stronger effort, to establish a stronger effort to bring the truth out, because there’s also, as in all genocide, an element of racism and discrimination. These people were slaughtered because the military and those in power in Guatemala felt that they were less than human beings, that they did not have the same rights as everyone else, that they were protecting the country against the interest of an international evil sort of force that was supposedly creeping into the country through the Mayan population. There were many justifications they tried to create, but all of them bring us back to a regime based on racism, a virtual apartheid that we have lived in the country. This is the logic of, why then? I mean, why did we begin at that moment? And why do we insist on raising these issues?
Finally, I mean, I’ll let Paul develop this more, but there’s also the question of prescription, or what they would call here in the states “statute of limitations.” In Guatemalan law, the longest period of limitation on a crime, such a limitation is 20 years. Although we believe that genocide cannot prescribe -- genocide is a crime against humanity -- we were not sure that the Guatemalan courts would agree with that interpretation, especially since the fact that Guatemala has not subscribed to the International Convention on Unprescribability of War Crimes.
So it was very important for us to try to address that issue before the 20 years were over. March 23rd next year is the 20th anniversary of the coup of Rios Montt, and we thought it was key and symbolic -- it was key legally, but also symbolically -- to have the case presented before that anniversary.
Those are the different sort of explanations of, like I said, the different questions we have received. Do we support other initiatives? Like the case in Spain, we do. We have a very close coordination with Rigoberta Menchu and with the Menchu Foundation. We have given them legal advice from our legal team, coordinated by Paul, which is, we believe, very efficient. We have been able to sit down with him and help him out; we have a different strategy, but we still believe that we can share views and positions. We are in communication and in support of the families in Belgium. We have helped them also, and we’re trying to have them documenting this case and in analyzing this case. So we strongly believe that there is a way in which we can coordinate all those efforts in Guatemala or outside Guatemala at this moment to build in enough pressure to make the justice system work.
And finally, to conclude, I’d like to say that this case has allowed us to engage in many activities, some of them addressing the communities, how to strengthen the communities, how to strengthen their determination and their sort of internal spiritual strength. We have had several seminars, and let me tell you that as a matter of an enormous surprise, in one of those seminars we had, one of the communities was sharing their tragic experiences of the past and was listening. This was a community from Rabinal, and they were listening to people from Huehuetenango, another province, and they were shocked to hear that the same thing had happened to them so far away. And all of a sudden, it dawned on us that all of doing human rights and related to the Truth Commission reports understand this process as what was a national process of scorched earth policy design by the military governments of those years, but the local communities didn’t see it that way, just because they didn’t know what was happening elsewhere. So for many of these communities, the massacres and the persecution and the destruction they suffered were unique to them only. They knew that in their municipal district, several villages had been killed. But it was so horrendous that they thought that that had been the only case, the only region, and it was very difficult for them to understand that it had been national.
So it was very painful for them to recognize that this was a national phenomenon, but it also gave them a lot of strength, because it made them feel that what they were demanding, what they suffered first, but what they’re demanding now in terms of justice, is a very legitimate demand shared by people across the four corners of the country.
So this is one of the experiences we have engaged with the community we think are strengthening civil society from the point of view of the victims, as rewriting history from the victims’ perspective and not from the victimizer.
Finally, the other element is that we have also engaged in trainings with the prosecutors and the courts and other people in the justice system. It’s interesting to see that as difficult as this case may be -- you might understand, General Rios Montt is currently the president of the legislature in Guatemala of congress, and being prosecuted for having been a dictator and committing genocide 20 years, so it’s not an easy thing. We’ll have to go through a process of impeachment, as a matter of fact, in his case, because he has immunity given to his role as what would be speaker of the congress over there.
But nevertheless, we believe that within this case, as difficult as it is, we’re also helping to strengthen the system we have, giving training to the prosecutors in reference; they’re all experts on Guatemalan criminal law, but what we’re adding to that is an expertise on international criminal law and on human rights, and oftentimes reversing the order in which they investigate or they understand these phenomenons. So just recently, we had four prosecutors from the Ministeria Publico, from the public ministry, the attorney general’s office, in the Hague at the Yugoslavia tribunal receiving a seminar. We believe this is very important. This may not even be related directly to our case, but it is something that will build the concept of international war crimes within the mentality of the prosecutors and will facilitate the justice system in the future. So out of one case, we think we’re reaching justice or trying to reach justice for thousands of victims that suffered genocide. But at the same time, out of this one case, in each government -- actually two cases, I mean, one per government -- we also believe we’re making a major contribution to developing the rule of law and the trust in the justice system in our country.
JERRY FOWLER: Thank you, Frank. I think what we’ll do is have Paul speak and then Maggi, and then, of course, we’ll have time, I hope, to open it up for discussion and comments.
PAUL SEILS: Thanks very much. I’d just like to end off what Frank said. For us at CALDH and for me personally as well, it is a huge privilege and honor to be able to speak, and doing the kind of work that we have been doing in Guatemala for the last several years, to be able to come a place like this, which clearly has so much symbolism for the world in general, but in particular, for the people for whom we work and kind of what we are doing. So it’s a great privilege, and I’d like to thank Jerry for being good enough to organize this for us.
I, tragically, am a lawyer, so I may be a bit boring and mention a few legal points here. What I suggest we do is, in a sense, to recap a little bit of what Frank was saying, to put it into the context of the particular legal strategy that’s been developed over the last few years, and at the same time, to perhaps anticipate one or two of the questions that may arise.
One of the overarching discussions that has developed kind of in tandem with the debate on transitional justice has been a question about reconciliation. It’s a very contentious theme; well, it’s been a contentious theme for a very long time, but it’s developed a certain scholarship over the last few years, and there are very different views about how the reconciliation could be achieved and even if it should be achieved.
This was an incredibly difficult concept to develop. It’s been a very interesting debate pertaining to Guatemala over the last 18 months, I would say, with a round table of about 16 NGOs, nongovernmental organizations, and the UN Development Program, and we’ve been discussing the concept of reconciliation.
Now, I know of your Center for Human Rights Legal Action that, I’m glad to see, has won some friends and is an ideal reconciliation that is somewhat removed from the idea of a kind of quasi-religious concept of reconciliation. The reason for that is because, if you look at the kind of four basic concepts underlying a reconciliation, usually there is a religious concept. You’re looking at recognition of the wrong done; you’re looking at a contrition for the wrong that’s been done; you’re looking for a pardon on the part of the victim; and you’re looking for some kind of commitment to what’s harmony in the future. Some theologians may disagree with that, but in general terms, that’s normally what you’re looking at.
What you tend to find the transitional in states or countries is that the burden of the discussion for reconciliation actually usually falls full square on the victim’s shoulders. There’s very little expectation for detailed recognition of the atrocities that are committed on the part of the perpetrators. There is very, very rarely any contrition expressed whatsoever. When it is, it’s generally expressed in such a vague, noncommittal kind of way that it often adds insult to injury. What you’re left with is this kind of discourse that says to victims, “You have to forgive and let’s go on with it,” which is an incredible indignity upon indignity.
So an overview has been developed to say that what we’re looking at is reconciliation, more than a model of reconstruction, and what we are saying is that key to the development of a transitional society is that the reconstruction, above all, of the relationships of trust between the citizen and the state are crucial to any new prospect for living together in that kind of harmony. As Frank was saying, it is possibly important to forgive people, but ultimately that’s a personal choice -- it’s one that very few people, if any people, have got the moral position in any community or society to demand of a victim. So our position is to try and take out of that very personal circle of relationships and move it into a more structural position, and to discuss, how do you reestablish those connections of confidence and trust between the citizen and the state?
Crucial to that idea is the rule of law. The central axis of any of those kinds of relationships between citizens and states is the transparency and accountability that the rule of law brings. That’s why, as Frank was saying, this project, which has various other very important elements to it, is essential for the development of a democratic Guatemala. It’s not about forgiving and forgetting in that sense; it’s about re-establishing, first of all among the victim communities, a sense of confidence and trust in the state institutions. At the same time, it tries to strengthen the institutions there and demonstrate to the community as a whole that those things can actually function in a responsible and accountable way.
What we have tried to develop, then, in this concept of reconciliation as reconstruction is a model that, with some risk and trepidation, we sometimes call a model of intelligent justice. A lot of people might say that anything that lawyers do, intelligence is a contradiction in terms, I suppose. But what we’re trying to do is develop something whereby we respond to a lot of the criticisms that have developed over the last 15 years or so, and possibly since -- the key moment, certainly, in my reading of this in terms of national prosecution strategies, was the prosecution program in Argentina in 1984 under the Alfonsin government.
The lessons that were learned from that -- there are two fantastic books, and I’ll see if I can remember the names. One is by a chap called Carlos Nino, who unfortunately died in 1993, and I think, if I remember it was called -- A Radical Evil on Trial is the name of that book, and another book by a Jaime Malamud-Goti, which is called Game Without End: State Terror and the Politics o Justice. These two guys were the architects of the prosecution policy, and Malamud-Goti was the minister of the interior, and Carlos Nino was the senior advisors to Raul Alfonsin.
The two books are quite fascinating. They describe the tensions that develop and the huge model and philosophical dilemmas that lie behind who do you charge, how do you do that, how do you balance the risk of instability with trying to get justice for the victims? Since those experiences in Argentina, there have been a lot of discussions about how do you actually achieve justice, meet all those arguments about destabilization, and at the same time offer something beyond a vision of vengeance that is often demeaned as.
Our idea has been, as Frank said -- and I think this is crucial and something that I can’t emphasize enough -- the absolute core to the project that we have undertaken in Guatemala has been that it is victim-led; it’s about victims; it’s, above all, for the victims with a huge transcendence into different kinds of areas. But it’s not about CALDH. It’s not about me or Frank or the rest of the team working on this. It’s about those victims re-establishing the dignity of themselves and of the loved ones who were massacred or disappeared during the years 1981 and 1982.
The moral that I mentioned that goes to the project I think can’t be emphasized enough. It’s of crucial importance to make sure that everyone understands that it’s not about anything other than those people achieving that vindication.
What that means is actually a fairly complex package of operations. What happened in Guatemala was that several years ago, when CALDH actually went to Guatemala for the first time before I got there -- was that 1994 when they opened the office in Guatemala? -- and from 1994, CALDH was involved in a lot of the repatriation and return schemes that were involved for the people who were in the refugee camps in Southern Mexico. And we got to know some of the communities that were involved, in particular, a community in Ixcan, up in the very north of Guatemala, called Cuarto Pueblo, that some of you will know about a massacre there, [inaudible] one by Ricardo Falla, his book Massacres in the Jungle: Ixcan, Guatemala, 1975 - 1982.
We also developed relationships in various other areas of the country, and bit by bit we got to know certain communities particularly well. Each of those communities, I would say, by about 1997, when I got there, we had about eight communities that we were working with who had all asked for prosecutions to be undertaken. That’s important that we recognize that it was them that asked us, not us that asked them. We began to work on individual prosecutions locally. But gradually what we could see was that, as Frank said, it was clear that these communities actually didn’t know, not only between Rabinal and Huehuetenango, if anyone here is familiar with the geography of Guatemala, but even more locally, people didn’t recognize or didn’t know what happened even 40 miles away, 20 miles away. And you’re talking about huge massacres: anything between 20 to 300, 400 people being killed in these massacres.
It became clear to us as a team that, while we were serving the interests of justice of the victim, we weren’t necessarily achieving another object which is part of this idea of intelligent justice. Now, in those transitional moments, you have to have an eye on history, and you have to be able to try as far as possible to present in these kinds of cases a historical picture of what actually happened. By presenting these eight or nine different massacres in this rather dislocated way, we weren’t going to be able to show that what had actually happened was a strategy developed from above to take place over a specific area through a specific period with a specific end. So it became clear to us that we had to have a longer discussion with those communities and other communities about how do we bring these cases, but at the same time show what was the pattern behind them and what was the idea and the intention behind the massacres, because as Frank said, if these communities all have this idea that, “Well, we were the only ones that were hit, that we were the only ones were attacked,” [inaudible] and if you begin to say to them and to the community as a whole, then it takes on a different kind of dimension historically and legally.
So you have the victim-led center, and you have this historical perspective that drives the patterns behind the prosecution project. Added to this idea of the historical perspective of the prosecutions, you have a very tough question about who do you actually prosecute. I think it’s relative. Obviously, it’s a very difficult question. As Frank said, if you try to prosecute everyone that was involved in 200,000 killings or 200,000 victims of serious human rights violations over a 36-year period, A., you lose sympathy; B., you interrupt the legal system; and most importantly of all, you’re almost guaranteed to get absolutely no results.
So you have to make some decisions. What’s developed over the last, I would say, maybe 4 or 5 years is a general consensus among scholars and activists in this area that you’d really have to go for the big guns in these cases. It’s not feasible, and ultimately not prudent, to go for the low and middle level of those who are responsible.
That becomes a very, very difficult position in certain situations. If you’re working with communities who actually know who a local commander was that was present, perhaps, during a massacre, or because of information, for example, of radio communication during one of the massacres in Rabinal, in a place called Panacal, where we know that there was radio communication from the massacre site to the headquarters in a place called Coban with the regional commander. Then people say, “Well, why don’t you go for this guy?” Well, if you go for that guy, we have to go for another 22 guys in the same situation. If we go for those 22 guys, you have a very clear possibility of them becoming scapegoats and the high command never being rendered accountable.
People say, “Well, why don’t you go for them first and build up a pyramid, if you like, of accountability?” Well, if you do that, we don’t have much money; Guatemala’s legal system doesn’t have much money. I look at as you have one bite at this cherry, if you like. I don’t know if you use that phrase in the U.S., but we use it in the U.K.
JERRY FOWLER: Yes, one bite apiece.
PAUL SEILS: So there are practical problems; there are moral problems; there are legal problems. It, in a sense, doesn’t do to look at the tribunals that Jerry mentioned for this example, for the ad hoc tribunals. The ad hoc tribunals in Rwanda and Yugoslavia -- I had a discussion a couple of years ago with Richard Goldstone, South African supreme justice now who was the first senior prosecutor, chief prosecutor at the Hague tribunal. We were talking a little bit about who do you go for, basically. He said it was just impossible; while morally and strategically, it may have been wiser to go for the high commands as far as possible, politically it just wasn’t going to run for the Hague and for the [inaudible] tribunals through Rwanda. They just weren’t going to be able to sell it to the Security Council in terms of the use of resources, and they weren’t going to go for low or medium-ranking officers. There’s a key difference between international ad hoc tribunals and national prosecutions. Political agendas come into play. Above all, financial and sympathy agendas, to some extent, come into play as well.
What has been very illuminating for us and, I think, one of the really important things, that you can get the impression that because we’re talking about things being victim-led, you might think, “That’s all very well to see that.” But it must be a very kind of vertical process; it must be us telling the communities what’s what.
I think, from my point of view personally, it’s a very genuine reflection that the enrichment process for us to talk to these people and to see their wisdom -- and I don’t mean that in any patronizing sense whatsoever -- but these guys are very clued in to a very innate sense of justice. They lived in those communities. They knew what the dynamics were. Some of you know about the civil defense patrols, the [inaudible] in Guatemala. They know whether what the dynamics behind that were. They know that not all of those patrollers joined those patrols of their own volition or without some form of duress. They understand that a lot of the soldiers who were indigenous were either forcibly recruited into the army or were carrying out orders that they knew to be horrendous, and we can have a big debate about obedience and all of those kinds of things. But besides those arguments, they have a very clear sense of who is ultimately responsible.
It was very interesting to us, because we had a very tense discussion at some stages within CALDH, actually, about who we should actually think about trying to target in these prosecutions projects. I have to say from my point of view, it was both a relief and a matter of some satisfaction that the communities who very clearly said, “If it’s possible to simply go for the high command, that’s what we would prefer.” I have to say, that was a universal position of all the communities that we were working with. It was their position that they would rather not go for local commanders or direct participants in the massacres, but if it was possible, when they began to understand, especially the patterns and the planning behind these massacres, that they would much prefer a strategy that went straight to the high commands.
So you have the victim-led aspect of this idea of intelligent justice. You have a historical responsibility. You have the moral question about who do you go for. And, as Frank said, you have this other key question of how do you use these cases to actually strengthen the institutions that are involved. Above all, that means the prosecutor’s office was called in Guatemala, Ministeria Publico.
As Frank mentioned, we have been involved there. There were two or three reasons for our involvement there. One of them is to demonstrate very clearly that what’s going on here isn’t a question of vengeance. I think it almost reprehensible that you actually have to get into that discussion and somehow justify this --
PAUL SEILS: -- is very much the tendency, especially of the military apologists in Guatemala, to describe any social justice as vengeance. I have to say that I do get incredibly angry when I hear that. It’s a very strange business, and it goes back to this idea of putting the onus of forgiveness on the victims. How is it that you would not expect someone who was robbed, or the victim of an assault to simply forgive the perpetrator, that when we get into the sense of huge, incredible violations of human rights, about massacres of innocent men, women, and children, that people have the gall to call that vengeance when you, instead of taking up arms against them, seek justice in the courts of law? And people have the gall to call that vengeance.
So I think it’s a very important aspect today that we ensure that we’re strengthening their institutions, and giving the state the opportunity to strengthen. As Frank mentioned, part of that is a process of training the prosecutor’s office not only in war crimes investigation and prosecution, but also in the general question against impunity, both in terms of petty, modern crime, serious modern crime, and historical crime.
I want to mention just a couple of other issues that I think are quite important, and one is a bit boring and technical, but I think is worth it in this audience about universal jurisdiction and, as Frank mentioned, the interplay between this case and other cases. The other thing is the kinds of crimes that we are actually alleging to have taken place.
The crimes that we are alleging -- genocide, yes, and also crimes against humanity, other crimes against humanity, I think it’s very, very important that we emphasize that we’re not only talking about genocide in Guatemala. I know that the Holocaust Museum has often had a very wide debate about the issue of what else you can call genocide and what you should call genocide, and there are clearly very justifiable reasons for that debate.
This is also part of the scholarship that has developed over the maybe 14 or 15 years about, to some extent, the abuse of the term “genocide.” What you tend to see -- and it’s something that I find a little bit funny sometimes -- that almost any book that’s been written about genocide in the last 15 years or so starts off with a chapter or an introduction that says, “We ought not to abuse the term ‘genocide,’” and an awful lot of the books then go on for another 200 or 300 pages, in my view, clearly do that. So it’s an interesting position.
We are in a fortunate position, I think, that the Truth Commission in Guatemala did come out with a very serious study, a very well-received study, and it took a very long considered decision to call what happened in Guatemala acts of genocide. It gives us a much easier ride, frankly, in international forum to be able to describe it as genocide.
My view, legally speaking, is that it is a fairly clear example of genocide. There’s somewhat to be done because it’s in the context of the law, which makes it slightly different from other genocides that have taken place. It’s easier for the military to muddy the waters, to some extent, about who the victims would swear and whether or not they were competent and things like that. Scholars of genocide, among you, you know that motive has no role in the general term of “genocide,” but it’s one of the ways that the military can use to confuse the issue.
It’s important, then, that we are clear that we’re not only talking about genocide, although we’re quite clear that genocide was committed in Guatemala; we’re talking also about kinds of racial persecution as such, not only genocide but persecution of a Mayan population. We’re talking about persecution of that same group on the basis of their perceived political opinion. It’s an issue that often doesn’t come up, but one of the interesting ideas -- and it shows a little bit the lack of scholarship on the part of the military apologists in Guatemala -- the defense often is that “We didn’t kill them because they were Mayan; we killed them because they supported the communists.” Now, there was no basis, actually, to come to that conclusion. By and large it was indiscriminate massacres in most of the communities. One or two, there was a bit more intelligence in terms of military intelligence. But the defense uses “We killed them because they were supporters of the URNG or the communist insurgencies.”
That’s political persecution. You’re not entitled to go and kill swaths of innocent civilians on the basis of what you think they may believe, and that’s a war crime in the context of the conflict, and it’s a crime against humanity. So it’s important that we’re clear that it’s not just genocide we’re talking about; it’s other crimes against humanity.
The background to those things, just to give you a little bit of information: The Guatemalan Criminal Court incorporated the crime of genocide and the war crimes and crimes against humanity in the 1973 criminal court [inaudible] -- there’s no issue about whether or not you can actually prosecute those things in Guatemala at the time of the acts being committed.
As Frank mentioned, the debate about when you actually bring these cases, the correction of prescription of the statute of limitations, the Guatemalan criminal court is actually very clear. The statute of limitations was for 20 years; whether or not we believe that it ought to be an imprescribable or imprescriptable, whatever word you want to use, that’s a bit of a moral debate. The bottom line is that the Guatemalan court does not allow us to argue that. While we may have had some success, depending who the judges were, it was clearly a risk not worth taking. Any lawyer will tell you that the first thing you always do, whether it’s a matrimonial case or a personal injury case or a genocide case, is make sure you get your case in before the statute of limitations runs out. So that was the prudent course of action.
That’s the background. I just want to mention a little bit about the strategies and the time frames. I don’t know how much time I have, if you’d let me know roughly how much time I’ve got and I can -- 5 minutes?
JERRY FOWLER: Another 5 minutes will be fine.
PAUL SEILS: Okay. The background: This investigation of claims against humanity and genocide is actually almost an inversion of the normal models for investigation for kind of up-to-date crimes. We have had very close relationships, and I owe a great deal of gratitude, a great debt of gratitude, to friends in the prosecutor’s office in the Hague for the Yugoslav tribunal, and they have helped us considerably in discussing the models of investigation and preparation for the trials that they have had.
What you do, and what we are doing, is creating, first of all, a level that you may call factory construction. In the 20 massacres, the 21 massacres involved in the two cases -- one case is against Lucas Garcia high command; the other case is against the Rios Montt high command. We have in both of those cases, crucially, more than 50 eyewitnesses in each case that are prepared to testify.
The biggest obstacle in any of these cases, whether it’s in Tanzania for the Rwandan tribunal or in the Hague for the Yugoslav tribunal or in any domestic prosecution, is how the eyewitnesses are prepared to testify. In Yugoslavia, what happens is, they go over and they’re protected, but they have to go back and live in Yugoslavia. They have to take an incredibly demanding decision about their own welfare and security. The same is clearly the case -- probably more so -- in Guatemala, and there are huge, huge security risks for those eyewitnesses. They are virtually in a position where they cannot be protected, and so part of the 4 or 5-year process of discussing with those communities was to make it absolutely crystal clear that their decision to be eyewitnesses and to participate in this case was essentially to put themselves 100 percent on the line again.
We’ve spoken to more than 70 communities over the last 4 or 5 years. Many of those communities couldn’t take part in the project, partly because they didn’t have what we regarded as the kind of crucial criteria to make it legally viable to prove the massacre. It doesn’t mean it didn’t take place, but proving it was going to be quite difficult. But many of them as well simply said, “Look, you know, we’re not really in a position or a stage of dealing with this to be prepared to take those risks again.”
So I think it’s an incredible testament to the bravery and the courage of these hundred or so witnesses. We have an accompaniment program that some of you know about, and some of you are involved in helping us with, and we have our own 25 to 30 accompanists from the international community who can live with those people and do offer a good deal of moral support, but it’s not the same thing as actual effect of protection.
So all of these witnesses have come to a position where they’ve said, “I am prepared to go through this again.” As if we weren’t clear enough about it, the president of their association -- and Frank mentioned this already -- suffered one attempted murder against his person about 6 weeks ago in Ixcan. We’re under no illusions that we run a huge, huge risk in this case. We clearly run a slight risk in the capital, but nothing compared, I think, to what the victims and the witnesses are running up there. I think that as a matter of fairness and dignity, it’s very important that we mention that.
Once you’ve got that factory construction base, you then move into what is very much new territory for the prosecution in Guatemala and the Ministeria Publico, which is really using expert testimony to build up the larger pictures, the historical context of the conflict, and the conduct of the conflict itself with military witnesses from around the world, and questions from anthropologists and sociologists to define a victim group as an ethnic group in the context of the Guatemalan criminal court.
We were lucky enough to have had a meeting on Friday night with the Guatemalan Scholars’ Network, which is probably, in terms of Latin American scholarship, one of the most together kinds of groups in terms of support and scholarship. Many of them will be and have offered themselves as expert witnesses. They were there during the times of the massacres. People like Beatriz Manz, whom some of you have heard of and will know, and who have done great scholarship in Ixcan and Huehuetenango and were there during the massacres. These guys and these women will be used as expert witnesses to describe what happened, why it happened, what the dynamics were at the time, how it fit into a general pattern of racism and discrimination, and how it kind of clicks in with the general fear in the military culture of an indigenous uprising in Guatemala, and how the massacres can really only be described, explained in that context.
As I mentioned, military witnesses will then be brought on board from about four or five countries. We don’t expect Guatemalan military or ex-military to tell us what happened and what the precise information flows were. The few slight glimmers of hope that did exist proved very much to be illusions. We have talked to one or two, and I don’t think we’ll be pursuing those particular lines.
So that’s the general situation. We envisage that by the time we get through the eyewitness testimonies, the expert testimonies, and the military testimonies, if everything is going relatively smoothly, without delays and intimidation, that we should be getting toward a decision about whether or not this case can go to trial by around October to December of next year.
We would then be looking another phase between that decision to send it to trial and a whole series of delaying tactics by the military. But we would be in a different situation, but because we’ve been going toward a different government and the levers of power will be changing hands; I know they are a little bit more difficult for an incoming government to be seen internationally to be supporting delaying tactics. Or the general aim, things are coming together, if you like, at that stage with the prosecution reaching that stage with changing of governments with an international pressure being sought, and all of that gives us some encouragement.
I want to finish by just giving us all a reality check. It’s clearly a very, very uphill struggle, monumentally difficult to bring everyone on board, to keep the communities sufficiently animated and encouraged to pursue it to the end in the face of threat and intimidation. It is an issue that really requires a very hard-worked, I think, now increasingly successful relationship with the Ministeria Publico. Above all, it requires very committed and conscious support from the international community from people like yourselves who are here to hear about it; from the Holocaust Museum, who have been very kind, as I said, today to help us with this activity; and from people around the world who have been active and supportive. But it’s very important that kind of activity continues right through.
Next year marks a series of activities, the 20th anniversary of most of the massacres. So we’re trying to build up a whole series of activities of marches, of concerts, of publications to mark those 20th anniversaries and to use that as a further vehicle to encourage the Ministeria Publico towards the prosecution.
I’m not going to mention universal jurisdiction. I think I’ve said enough. Thanks.
JERRY FOWLER: Thank you, Paul.
MAGGI POPKIN: Thank you, Jerry. Well, I’m going to try to put what Frank and Paul have been speaking to us about into a little bit of regional context, but first perhaps responding especially to what Paul said about the challenges of the road ahead, I find that as somebody who had followed Guatemala for a number of years that it’s just amazing that these prosecutions have even begun and have already gone as far as they have. But as I understand it, dozens of witnesses have already been interviewed on the first case.
This is in a country where not very many years ago, everybody said in Guatemala, of all countries, there will never be prosecutions because of the very strength of the military, the weakness of the judicial system, and so on. So it is really quite amazing that this is moving forward.
Guatemala is obviously a different situation, to some extent, from other countries in Latin America that have gone through transition processes. And perhaps the greatest differences are, first of all, that the magnitude of the repression in Guatemala just is beyond that of any of the other countries of Latin America in the recent period. The numbers just are not the same in any other country. They don’t rise to that level.
Then secondly, as Frank and Paul have mentioned, in Guatemala, genocide took place. There was a real racial factor to the violence that took place. And, again, in the recent period -- and certainly it has happened in other countries in Latin America historically -- but in this recent period of repression, 1970s and 1980s, there’s no other country in Latin America that went through a similar process. There were massacres in other countries, but they didn’t have this racial motivation and genocidal aspect.
That said, I think that what’s going on in Guatemala and what has gone on is very much part of a regional process of what’s often called transitional justice of how you deal with the past, and faces some of the same obstacles, but also has come this far and hopefully will go much farther as a result of certain factors, some of which Paul has already mentioned, but I’d just like to quickly try and recap it before we open this up for discussion.
One really important point is the weakness of all the judicial systems, in particular the Guatemalan judicial system. As different Truth Commissions in Latin America did their work, they all have found -- and this is true in Argentina, Chile, El Salvador, Honduras, and then a number of nongovernmental commissions in other countries -- that the judiciary failed in the situation’s repression. The judiciaries were unable to protect human rights, and this became a contributing factor to the atrocities that occurred: simply, the judiciaries abdicated their responsibility to protect human rights.
So one of the challenges for all these transitions has been, how do you either rebuild -- or, in some cases, practically build from scratch -- a judiciary that’s capable of being independent and protecting human rights? Certainly that’s the challenge in Guatemala.
In other countries in the region, particularly in neighboring El Salvador, but also in some of the other countries such as Paraguay, for example, there have been constitutional reforms designed to try and strengthen judicial independence. In Guatemala, this didn’t happen. Constitutional reforms about the judiciary were not included in the peace accords, and the post-peace accord, part of the peace process effort to have reforms failed. So Guatemala is still basically operating under the same judicial system that was in place during the war.
Then throughout the region, the transitional legal frameworks have often been designed to prevent or limit prosecutions. By this, I mean basically, amnesty laws have been put in place. In this area, Guatemala is actually in a better position than a number of the other countries, and I think this has something to do with recent history. Guatemala perhaps had the bad and good fortune to come along fairly late in this process of transitions in Latin America, so that it had the benefit of the experiences of other countries, and also a certain evolution and understanding of international law requirements.
It was harder at the time of the Guatemalan peace accords to negotiate total amnesty, such as you find in a number of other countries, including next door in El Salvador. Instead, a limited amnesty law was negotiated with certain exceptions, and the Clarifications Commission in Guatemala took up that law as it’s written and said, “Well, everything that can’t be amnestied should be prosecuted,” and that included genocide, torture, disappearances and certain other crimes. That’s been an important positive for the possibility of prosecutions in Guatemala.
You can make the argument -- and it’s been made more and more successfully in other countries -- that international law requirements don’t allow amnesties to end prosecutions of crimes against humanity and war crimes. But it helps to not have a legal bar to overcome.
Another factor that’s made it hard to do prosecutions -- and Paul certainly mentioned this -- the kind of postwar attitude that not prosecuting or having an amnesty or whatever, it’s the price of stability: “We have to forgive and forget the past if it’s possible so that we can go forward,” and this has been a very strong argument throughout Latin America. I heard a high-ranking of the previous Guatemalan government come to Washington to explain to policymakers that, really, they shouldn’t be pressuring for prosecutions in Guatemala, because this would inevitably destabilize the democratic transition.
There’s an argument that’s certainly been raised -- Paul mentioned an Argentine case; it’s been raised throughout Latin America, very much in Chile, but I think the Chilean example is very interesting, because after years of saying that any attempt to prosecute Pinochet would end the democratic transition in Chile, we’re now seeing that that in fact was not the case, and that the democratic institutions, particularly the judiciary in Chile, seemed to have been strengthened by the attempt to prosecute him, even if that ultimately was ended.
There have been, clearly, advances in the efforts to prosecute in Latin America, to prosecute those responsible for serious human rights violations, crimes against humanity, and, in the Guatemalan case, of course, genocide. One of the factors that really strengthens this is what I call the globalization of international human rights law. This is what Paul was referring to: in part, the work of the international tribunals in the last few years in terms of the former Yugoslavia and Rwanda, and the body of law and analysis that’s come out of their work. Then also the use of universal jurisdiction, primarily in Spain and the Argentine and Chilean cases, and the tremendous push that was received from what is now know as the Pinochet precedent.
These have an impact in national systems. We’ve seen it very much in Argentina and Chile, particularly in Chile, where it seemed at the time Pinochet, there was an attempt to extradite him to Spain, one of the arguments in favor of the extradition was that he would never, ever, ever be prosecuted in Chile, and he was protected by immunity, and the Chilean courts wouldn’t dare to do this.
By the time the extradition attempt failed, it was equally apparent that there would be an attempt to prosecute him, and his immunity was taken away in Chile.
So that kind of direct impact has also been seen in other countries which have, in judicial decisions -- in the March 2001 decision by an Argentine judge, Judge Cavallo, who threw out the impunity laws in Argentina as unconstitutional, he extensively cited international law. He cited the inter-American system’s jurisprudence that says that amnesties cannot run counter to the American convention of the human rights requirement that states investigate and prosecute those responsible for serious human rights violations. He cited the Spanish court’s analysis. He cited other international courts, including the United States where there have been civil claims under the Alien Tort Claims Act to support the idea that investigations had to be allowed to go forward in Argentina, and that case is currently on appeal.
But the American Commission on Human Rights and the Inter-American Court’s decisions on these cases and reviewing amnesty laws in Latin America have led to decisions which have increasingly been taken into account. In Argentina, not only is that the case, but the decision to give reparations to victims came out as a result of litigation in the inter-American system; in Honduras as well.
In Guatemala itself, the current government has engaged in what I call friendly settlement negotiations, the certain cases in response to the Inter-American Commission. Peru is perhaps the most striking case, where after the Fujimori government went so far as to try to withdraw from the jurisdiction of the Inter-American Court on Human Rights and ignore its decisions, including decisions upholding judicial independence or saying that judges on the Supreme Court and the Constitutional Court who have been removed for political reasons and without due process should be reinstated, and then more recently in the decision of the Inter-American Court finding that the extremely broad, probably broadest amnesty law in Latin America violated the American Convention, as soon as Fujimori was out of office, the new transitional government used those decisions as backing to support judicial independence, reinstate those particular individuals, and overturn the effects of the amnesty law. So the international pressure, international actions in law, have been having a lot of effect in the region in a way that has not been seen before.
They’ve also -- Frank and Paul talked about it -- created opportunities for judges and prosecutors to learn about advances in international law, so that they can understand what’s happening elsewhere and apply it in their own countries. I think this visit of the Guatemalan prosecutors to the Hague recently is a marvelous example of this. But there have been a lot of educational efforts, both inside and outside countries that have made the judges and prosecutors more aware of what’s going on elsewhere, and of the reach of international law.
I guess maybe just to kind of quickly wrap up so we can have some discussion, I’d say that perhaps in Guatemala, one of the most key factors -- and it’s certainly well represented here today -- has been the role of civil society. The countries where something has happened in terms of prosecutions are the countries where victims have been organized, where human rights NGOs have worked with them and have made creative legal arguments, used the international law and domestic law to push these efforts forward. I think CALDH and the work it’s done with the Victims Association is a wonderful example of this. Obviously, all its work is important, and all the work that’s been done internationally, which is so much support of the work nationally, ultimately in the long run, it’s going to be domestic legal systems in all these countries that have to become able to protect human rights and to handle these really difficult cases, and at the same time, create an understanding within countries that there are certain kinds of crimes that do have to be investigated, where the truth needs to come out, and where those most responsible need to be held accountable. And I definitely just find that the work you’re doing is on my list of examples that is pushing forward these efforts.