December 7, 2009

Justice: Transparency or Incarceration?

150 years for forced disappearance a precedent, families not satisfied

by Valerie Croft

The Dominion - http://www.dominionpaper.ca

Families of the disappeared hoped the trial that resulted in Guatemala's first conviction of forced disappearance would reveal information about the fate of their loved ones. Photo: James Rodriguez/www.mimundo.org

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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.

Judge Jiminez stated in his ruling that, for Mayans, giving a proper burial to the remains of the disappeared is "of particular importance due to the central relevance in their culture of the active link between the living and the dead.” Photo: James Rodriguez/www.mimundo.org

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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