The Countdown to January 5th, 2015: Genocide retrial on course, but questions remain

“The thousands and thousands of victims will never abandon this struggle. We have to see it through. There are multitudes of victims by my side demanding that I speak out for justice and so I am going to speak out. In no moment will this [struggle] be abandoned. We have already made huge strides… I thank the people from other countries that are here surrounding us. I thank them. We are not alone because there are people that are supporting us.”  – Woman survivor and member of the AJR

Nearly 19 months have passed since the initial conviction and subsequent annulment of the trial proceedings that had resulted in a guilty verdict against Efraín Ríos Montt for genocide and crimes against humanity. During this time, the Association for Justice and Reconciliation (AJR) and their legal team at the Center for Human Rights Legal Action (CALDH) have worked tirelessly to strike down the numerous legal obstacles launched by Montt’s defense in order to avoid the retrial, scheduled to begin January 5th, 2015.

Yesterday, less than three weeks from the programmed start of the retrial, the Constitutional Court resolved that the legal process should not be set back to November 2011. This issue was one of the most significant outstanding obstacles to a January 5th retrial start. Last-ditch efforts by the defense, as well as behind-the-scenes political maneuvers by the economic elite have plagued this process from the beginning. Now, the defense team is welcoming the January 5th retrial, causing concern that the goal of the new trial is to cement impunity rather than truly seek justice. Likewise, the retrial is set to take place after a year of questionable judicial nominations that many postulate have solidified impunity in the courts. Finally, a decision on amnesty for Ríos Montt is still pending in national courts.

If the legal twists and turns have you confused, rest assured that you are not alone; the confusion is intentional. The complicated and convoluted legal web created by the defense is a tactic put in place ever since the lead-up to the 2013 genocide trial. In lieu of an actual legal strategy, the defense used dilatory tactics and political grandstanding to try to stall the process, exhaust the victims and ultimately maintain impunity. Important questions for the first day of the retrial: If these obstructionist tactics do not continue, is there something else at play? Is this new trial intended to permanently deny the victims justice in national courts?

Throughout the lengthy legal processes within a Guatemalan justice system seemingly unable to find a clear path towards justice, the AJR and their supporters uphold the 2013 genocide verdict and sentence as valid. From a legal standpoint, CALDH has highlighted that the verdict and sentence were emitted by a legitimate Guatemalan tribunal through due process and carried out according to rule of law. In addition, the steps required to annul the sentence were never undertaken by the defense, and as such, the sentence has legal as well as moral standing.

The AJR and CALDH will participate in this new trial, and we will stand with them. To show your ongoing support of their work, we ask that you pause a moment during this holiday season to take a photo with your loved ones and show your commitment to stand with the AJR and the survivors of genocide in Guatemala. If you participated in our photo campaign during the genocide trial, we encourage you to renew your commitment by adding the message “SEGUIMOS CON USTEDES” / “WE ARE STILL WITH YOU” and encourage your friends and family to take the photo.

In the lead up to a new trial, we have compiled a timeline of key legal events in the ongoing search for justice. We will update this timeline as new information becomes available.

March 19, 2013 – Trial opens in Guatemala City against former General Efraín Ríos Montt and former head of military intelligence, José Mauricio Rodríguez Sánchez. Both are charged with genocide and crimes against humanity for massacres that took place between March 1982 and October 1983 during the de facto government of Ríos Montt. The foundations for this case date back to the genocide charges originally filed in 2001 by the Association for Justice and Reconciliation (AJR) with support from the Center for Human Rights Legal Action (CALDH).

April 18, 2013 – After 20 days of testimony, High Risk Crimes Court Judge Carol Patricia Flores rules that the proceedings should be annulled and the case returned to November 23rd, 2011, before Ríos Montt was indicted. The Flores hearing was ostensibly based on a dispute regarding the acceptance of defense evidence, an issue that was eventually resolved. However, Flores added a separate issue into this proceeding, arguing that in order to restore constitutional rights to CALDH, the proceedings should be regressed to November 23, 2011 and the process returned to her jurisdiction. The ruling is based on a legal process rooted in a recusal originally requested by defense counsel and later appealed by CALDH.

This appeal was the central issue the Constitutional Court finally resolved on December 18, 2014. A ruling in favor of the defense would have set Ríos Montt free, as he was not charged with the crimes in 2011.

April 19, 2013 –Judge Yassmín Barrios’ response to the Flores decision is that she will not obey “an illegal order” and as such, the April 18 decision will not stop the trial. However, Judge Barrios temporarily suspends the hearings to address other injunctions submitted by the defense.

May 10, 2013 – Efraín Ríos Montt is found guilty of genocide and crimes against humanity and sentenced to 80 years in prison. The court ratified all the elements of genocide described by witness and expert testimony, concluding that Ríos Montt had both command authority and “full knowledge of what was happening and did nothing to stop it.”

May 20, 2013 – Guatemala’s Constitutional Court overturns the genocide sentence based on legal challenges filed by the defense team, claiming technical errors in the trial process. The ruling annuls all testimony given from April 19th onward.

October 2013 – The Constitutional Court orders a lower court to provide a legal foundation for their prior ruling against amnesty. Human rights groups fear this opens the door to amnesty for war crimes. The Court justifies this move by arguing that due process was not respected in a lower court’s decision rejecting the application of wartime amnesty Decree 8-86. The decree was passed during de facto government of Oscar Humberto Mejía Víctores and mandated a blanket amnesty for all crimes committed between March 23, 1983 and January 14, 1986. The prosecution appeals by citing national and international laws that clearly invalidate the 1986 “auto-amnesty” decree.

The question of amnesty for Ríos Montt, which was launched in 2012, remains unresolved. The issue has been pending since the CC returned the matter to the Appeals Courts. An astonishing 61 judges have recused themselves from making the decision. A ruling in favor of amnesty would have wide-reaching consequences for the genocide cases, as well as other cases seeking justice in national courts for crimes during the internal armed conflict.

This same month, Sentencing Tribunal “B” affirms that it has jurisdiction to retry the case and sets a new court date for January 5th, 2015; however, the defense continues to fight for High Risk Crimes Judge “A” (Carol Patricia Flores) to have jurisdiction over the case.

December 31, 2013 – An Appeals Court upholds Judge Flores’ April 18th, 2013 ruling to annul the trial and set the process back to November 2011. One of the judges from this same appeals court will be part of the tribunal that decides on amnesty. The prosecution appeals the decision to support Flores’ ruling, sending it to the Constitutional Court for a final ruling.

March 26, 2014 – The Constitutional Court (CC) hears arguments regarding the April 18th, 2013 decision to regress the trial to November 2011.

December 10, 2014 – The Constitutional Court asks for the case file regarding the April 18th decision. The request causes concern, given arguments as to whether or not to restore Judge Flores’ jurisdiction were already heard in March.

December 18, 2014 – The Constitutional Court rejects Flores’ April 18th ruling to regress the case back to November 23rd, 2011. This long-awaited ruling means that one of the remaining obstacles preventing a retrial has finally been resolved, and a January 5th genocide case retrial seems likely.

December 23 – The Appeals Court tribunal to decide on amnesty for Ríos Montt, an appeal originally filed in 2012, finally forms after 61 judges recused themselves. The five-days granted to the tribunal to issue a ruling has come and gone and there is still no decision on amnesty.

The week before the re-trial date – Luis Rosales, lawyer for Ríos Montt, requests the recusal of Jeannette Valdés, lead judge on the Sentencing Tribunal “B”, based on a thesis she wrote on genocide more than ten years ago. Rosales also requests the recusal of Judge Edith Perez, one of the Appeals Court judges on the newly formed tribunal to decide amnesty. The decision to accept or reject a recusal request rests with the judge, although the ruling can be appealed.

President Otto Pérez Molina speaks out in favor of amnesty stating, “Remember, there is a Reconciliation Law that basically sets out amnesty… It is the courts that should rule [to grant amnesty] and we hope that is what will happen.” Molina also reacts negatively to the recently announced restrictions on US military funding to Guatemala, which are directly linked to advances in human rights and on the investigation and prosecution of current and retired military personnel stating, “We are advancing without needing the United States to tell us what we should do. We have sovereignty to make decisions.”

January 2, 2015 – The defense presents the Sentencing Tribunal a medical excuse claiming Ríos Montt is not physically able to stand trial due to a battery of health issues. This motion, along with the request to recuse Judge Jeannette Valdés will likely be heard during the opening of the re-trial on Monday, January 5^th.

The former head of state arrives in court on a gurney and the hearing reconvenes at 1 pm.

Judge Valdés initially rejects Ríos Montt’s request for her recusal but is forced to reverse her decision when the two other judges on the tribunal vote to uphold the motion to recuse. The trial is suspended indefinitely. As of today, there is no deadline for naming the new judge and, once again, no clear path towards advancing justice for the victims and survivors.

January 13, 2015 – The hearing in which Judge Flores should officially reverse her decision on setting the case back to 2011 in accordance with the December 18th Constitutional Court ruling is suspended due to the absence of Ríos Montt. His lawyers argue that the former general is too sick to appear in court and accuse Flores of violating his right to defense. Judge Flores orders the National Institute of Forensics Science (INACIF) to examine and evaluate Ríos Montt state of health. A new hearing date has not been set.

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NISGUA has provided human rights accompaniment to the witness organization, the Association for Justice and Reconciliation, and their lawyers, the Center for Human Rights Legal Action since 2000. Review our archival coverage of the historic genocide trial here.