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Report of the 2002 Mission THE TRIAL Mary Jane West-Eberhard and Morton Panish . .~ Myoma Mack's sister, Helen Mack, was the plaintiff In this case, to which she has dedicated twelve years of her life. The team for the prosecution consisted of Helen Mack, her two lawyers, two lawyers from the Public Ministry (which is headed by the Attorney General and is the agency through which civil crimes are brought to trial), and, on occasion as needed, an expert on military affairs to aid in questioning witnesses. The team for the defense consisted of the three~''6efendants and their lawyers (always at least one per defendant, and sometunes more). The setting for the Dial was the Salon de Vistas In the Su- preme Court building in Guatemala City, a large, immaculate, pn- manly marble and wood-paneled auditonum. The Dial was pre- sided over by three judges (presiding Judge Morelia Rios, Judge Jasmin Barrios, and Judge Carlos Chin), who sat at a table on a dais at the front of the room facing the audience. Below them, fac- ing each other, were the prosecution team (on the judges' lefc) and the defense lawyers and defendar~ts (on the right). When called, the testifying witnesses sat at the center of this stage facing the judges. The hall could accommodate approximately 200 people. 7 5

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8 HUMAN RIGHTS AND THE MACH CASK There are no jury teals In Guatemala. The judges make the determination of guilt or innocence, following public oral recita- tion of the documents deposited by the two sides and public state- ments and c ross-examination o f w itnesses ~ the p base i n p regress dunng the Cow representatives' attendance). The tnal had been in progress for four days prior to the arrival of the Cow representa- tives. Virtually all of the questions addressed to the witnesses were from the lawyers of the two parties to the trial. The presiding judge only occasionally asked a sub star~tive question, intervening pnmanly to maintain the correctness and order of the proceedings. The judges sometimes called a brief recess to confer regarding matters of procedure. They appeared to be managing the proceed- ings fairly and evenhandedly. At the adjournment of the first day of the trial (September 3, 2002), the presiding judge ordered the defendants jailed as a precaution against their escape, a maneuver which surprised all present given the power and stature of the defendants. Duling the first week of the teal, there was testimony by C lara Arenas (the current executive director of the Association for the Advancement of the Social Sciences, AVANCSO) that Myrna Mack had been warned that men linked to the anny were asking about her and her research. Ms. Arenas argued that she believes the anny killed Myrna Mack because of her research on refilgees and the internally displaced populations, which was considered a threat to the inter- ests of the state. . ~ Dunng Be first week there was also testimony by Monsi- gnor Julio Cabrera Ovalle, who was the bishop in the area of the Depar~nent of E! Quiche, where Myrna Mack had worked with the indigenous population. He argued that she was murdered because the army believed she had written a statement issued by Me Com- munities of Population in Resistances protesting anny bombings ' The Communities of Population in Resistance (CPR) are groups of the rural indigenous popu- lation who fled into the rain forests in the early 1980s, when the Guatemalan government began its

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~ - REPORT OF THE 2002 MISSION 9 and requesting that the indigenous people be allowed to exercise their constitutional right to live, travel, and freely resettle. This document was published in the Guatemalan press on September 7, 1990. Monsignor Cabrera said that the anny viewed the ~ndige- nous population as guemIla collaborators and fiercely opposed their efforts to live outside military control. This testimony pre- sented a somewhat new perspective; it is a connection not promi- nently made in the Cams previous infonnation on the case. ~ the succeeding sessions, the defense strategy was to show that the intelligence s ection o fthe Presidential High C om- mand (Estado Mayor Presidencial (EMP), a military unit known as the "archivo") was a separate entity from the anny and did no intelligence or counterinsurgency work, their exclusive function being the protection of the president and his family. This argument was weakened as witnesses contradicted these clanns. It is also of interest that there was a major assumption and clarion by the prose- cution that did not appear to b e questioned b y the ~ efense that the murder was committed by members of the army. This unchal- lenged assumption is the basis for the rationale by the defense to demonstrate that the EMP is an entity distinct Mom the anny. ~ general, the argu Dent being pressed by the prosecution was that the "intellectual authorship" of the Myrna Mack murder could be attributed to the officers that headed the EMP at the tune of the murder because: (~) the convicted murderer of Myrna Mack, Noel de Jesus Beteta Alvarez, was employed there; (2) me crime involved a pattern of activity commonly associated win Me EMP; and (3) the murder was motivated by the EMP's participa- tion In the military objective of countennsurgency, especially involving internally displaced persons the populations Myoma scorched earth policy directed at the indigenous population. Over time they organized themselves into three larger groups the CPR of Me Scan, the CPR of He Petan, and the CPR of the Sierra to facilitate We* survival, in particular, their ability to produce food and protect themselves against the anny.

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10 . HUMAN~GHTS AND THE MACK CASE Mack studied and which therefore caused her to be considered an enemy of the state. To support this argument, the prosecution and the Public Ministry presented several witnesses and eyewitnesses of events. The prosecution also used a military expert a former Peruvian general, Clever Alberto Pino Benamu, now devoted to exposing military violations of human rightsto cross-examine military witnesses for the defense. Additionally, they presented experts on the structure of the Guatemalan military and its chain of command, endeavonng to establish that the EMP could have participated in counterinsurgency and intelligence activities, in keeping with broad military objectives beyond presidential security (their puta- tive official function). These experts included a Guatemalar~ soci- olog~st, Hector Rosada author of a scholarly book on the mili- tarywho testified that the EMP was definitely a part of the army, that it was an organization with a tight command structure and dis- cipline, and that it was also involved in intelligence work. More detailed testimony along the same line came Dom Kate Doyle, an analyst for the National Security Archive, a non- gove~nental organization In the United States devoted to schol- arly analysis of documents from the Central Intelligence Agency (CIA), Federal Bureau of Investigation, and U.S. Department of State that are obtained under the Freedom of Information Act.2 (These same documents had confirmed and clarified several of the C='s long-standing cases of disappeared Guatemalan col- leagues.) Ms. Doyle testified as art expert witness on her under- starlding of He structure of the Guatemalar1 military as revealed by her studies of unclassified U.S. documents. She testified Bat He C[A and the U.S. Depardnent of State had ex~aordinanly detailed access to the inner workings of He Guatemalan military, intel- ligence, and courlteIinsurgency operations as evidenced by 15,000 available documents. This kind of infonnation is essentially ur~- 2 The documents were either unclassified or declassified.

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REPORT OF THE 2002 MISSION 11 available in Guatemala. She said that the documents clearly dem- onstrated that the EMP was an integral part of the army, of the in- telligence gathering apparatus, and of counterinsurgency opera- tions. Furthennore, she testified that there was very tight command control over the actions of the venous units and individuals in the army EMP apparatus and that one of the functions of the EMP was the elimination of people considered undesirable by the army. The impression given by the defense lawyers in their questions to Doyle was that they did not understand how such confidential gov- ern~nent documents could be made available to the public, thereby implying that their authenticity should be questioned. There were several other witnesses of particular interest. A fonner newspaper vendor, Virg~lio Rodriguez Santana, who regu- larly sold newspapers near the home of the Mack family, said that he observed Myrna Mack being followed by her murderer. He de- scnbed a pattern of behavior shown by other witnesses to charac- tenze EMP operations. Mr. Rodriguez became the focus of a pro- cedural controversy because he was brought by the prosecution from Canada, where he now lives as a Canadian citizen and politi- cal refugee, having left Guatemala because of threats to his life in connection with this case. Because his Canadian passport does not bear his maternal surname (not used In Canada), it did not match the All Guatemalan name listed in the court documents. This sur- name discrepancy had been the basis for court refusal to hear two previous defense witnesses. The defense had not questioned these refusals, but the prosecution cited a law that permits hearing the witness pending later resolution of the identification problem, a point accepted by the judges after a recess. This ruling led to . strong accusations by the defense lawyers of inconsistency by the judges (which provoked a strong reprimand by Me presiding judge), leading the defense to refuse to question the witness. Some observers raised the possibility that this incident might later be cited if a claim of a mistrial is submitted to the courts.

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12 HUMAN RIGHTS AND TlIEMACK CASK Another witness was a fanner chief of the Investigations Department of the Office of the Human Rights Ombudsman (Pro- curadona de Derechos Humanos), Leone] Gomez Rebula, who was responsible for the investigation of all human rights cases, ~nclud- ing that of Myrna Mack. His records contained complaints naming one of the defendants (Colonel Valencia Osono) as being involved in making phone calls to one of the police investigators In the Myrna Mack case. That police investigator, Jose Miguel Menda Escobar, was later murdered, and his coworker fled Guatemala be- cause of threats. A bishop, Monsignor Flores Reyes, testified as to the low. profile conduct of Myrna Mack during her research in the country ~ side in his parish, her patient role as a listener, and her lack of identification with the guerilia insurgency or other local political activity. . Jorge Lemus Alvarado, a prisoner In 1994 at the same jai! where Noel de Jesus Beteta (the convicted murderer of Myrna Mack) was serving his sentence, testified Hat he aspired to be an investigative reporter and proposed that Mr. B eteta allow him to record his true story. He and Mr. Beteta were part of a small group of fiiends who met daily to converse. Mr. Lemus described Mr. Beteta as unhappy that his former superiors at the EMP had apparently abandoned him. Mr. Lemus recorded his interviews on several audio tapes and also, with the permission of the director of the jail, procured a video camera and filmed Mr. Beteta's account, including art admission that he had murdered up to 30 people a year as art employee of the EMP. According to Mr. Lemus, Mr. Beteta confessed that he re- ceived a direct order to kill Myrna Mack from one of the defen- dants, Colonel Valencia Osono, with the implicit knowledge of another defendant, General Godoy Pagan. He gave detailed ~n- formation about how he planned the murder and the escape route he took abler it was committed. Copies of the tapes are in the 6

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REPORT OF THE 2002 MISSION 13 hands of the judges, arid there are copies kept for safekeeping at other places, including the U.S. Embassy in Guatemala City. The judge did not grant a request by the prosecution to have the tapes played at that time. Mr. Beteta has since retracted statements made during the interviews with Mr. Lemus. A few days later Mr. Beteta testified at the tnal to this effect, saying that he was under the influence of drugs provided through Helen Mack, that he is innocent of the murder, and that the defendants did not order him to carry it out. Since Mr. Beteta admitted in his testimony that he had made the tapes, the judges subsequently played them at the teal. On the 12th day of the trial, former Guatemalan President Marco Vin~cio Cerezo Arevalo (1986-1991) testified that the offi- cial functions of the EMP were supposed to be limited to providing security for the president and his family and were not to include intelligence and counterinsurgency activities. Mr. Cerezo said that he had no knowledge of EMP involvement in anything illegal. He identified the three accused as military officers who supported the democratic process. Mr. Cerezo said that he ordered the disman- tling of the "archive" office of the EMP at the beginning of his presidency and created the DeparDnent of Presidential Security (DSP), where Beteta, Oliva, arid Valencia worked. He indicated that he had also dismantled the Department of Technical Investiga- tions (DIT) ~ the National Police. He said that he did this because both entities were involved in illegal activities and political crimes. Former President Cerezo's testimony was the last of the expert tes- timonies from witnesses heard by the court. . Me tnal then passed into the phase In which documentary evidence was brought before the court. The court reviewed a re- port, Institutional Politics Towards the Internally Displaced in Guatemala, for which Myrna Mack was pnncipal researcher, which was published In English just two days before her murder, as well as excerpts Tom the report of the Recovery of the Histonc

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14 HUMAN RIGHTS AND THE MACK CASE Memory (Recuperacion de la Memona Historica, REWII) Project3 and many other documents. The documentary evidence phase was then followed by several days of conclusions and final arguments by the prosecution arid the defense. On the evening of October 3, 2002, the judges rendered their verdict. Colonel Juan Valencia Osorio was sentenced to 30 years in prison for planning and ordenng the 1990 murder of Myrna Mack. General Edgar Augusto Godoy Ga~tan axle Colonel Juan Guillermo Oliva were acquitted on the grounds Hat there was insufficient evidence that they had been directly involved In order- ~ng the murder. Helen Mack immediately filed an appeal against their acquittal. They are being held in preventive detention, pend- iIlg the outcome of the appeal, at E! Boqueron maximum security pnson. The conviction of Colonel ValeTlcia Osono is an unprece- dented event In Guatemala: it marks the first time that a high- rarlking member of the military has been convicted for a crime committed during the cour~try's 36-year armed conflict. (A state- ment issued by the Myrna Mack Foundation following the an- nouncement of the verdict can be fourth In Appendix E.) Both the prosecution and defense subsequently appealed the verdict, issuing beefs on both substantive and procedural grounds. An appeal hearing took place on December 5, 2002, as had been scheduled, before the Third Chamber of the Court of Ap- peals. However, arguments on the meets of the appeals were not heard, primanly because the defense filed motions against two of the three judges of the Chamber. As a result of the motions, the hearings were postponed, resulting in the case being ~arlsfe~red . .~v 3 The Recovery of the Historical Memory (REMHI) Project was begun by the Catholic Church in Guatemala in an effort to establish the truth about what happened during the 36-year civil conflict as a basis for justice and reconciliation. Interviews of approximately 7,000 victims were analyzed and published on April 24, 1998, in a report entitled Guatemala: Nunca Mas (Guatemala: Never Again). The report found Me Guatemalan military and paramilitary groups responsible for He vast majority of human rights violators committed during He conflict 5

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REPORT OF THE 2002 MISSION 15 Tom the Third Chamber to the Fourth Chamber o f the C curt o f Appeals --the same court that had recently issued a ruling over- turning the convictions in the murder trial of Bishop Juan Jose Gerardi Conedera.4 An appeal hearing was then scheduled for late February 2003, but was postponed by a motion filed by the public prosecutor. The appeals are now expected to be heard in late April 2003. According to the Lawyers Committee for Human Rights, threats and intimidation, particularly of witnesses and staff mem- bers of the Myrna Mack Foundation, have continued dunng the appeals process. Another significant development with regard to the Mack case took place in mid-February 2003, when the Inter-American Court of Human Rights began hearing the Mack case.5 Just before the government of Guatemala was to appear before the Inter- Amencan Court, it wrote to the court that it accepted international responsibility for having failed to provide prompt and due justice in the case. At the subsequent court session, when the government of Guatemala was accused of violating Myrna Mack's right to life and failing to promptly bring the case to justice, the government withdrew from the hearing. The court ordered the healing to pro- ceed as planned, however, to allow it to make a determination re- garding Me extent of the state's responsibility in the case. The Guatemalan government returned to the hearing only to make a Trial statement. The court's decision is expected In late summer or early fall 2003. If, In the court's view, We American Convention 4 Bishop Gerardi was auxiliary bishop of the archdiocese of Guatemala and coordinator of the archdiocese's human rights of lice. On April 26, 1998, he was brutally murdered in the garage of his home, two days after he announced the much publicized report on the Guatemalan civil conflict (see fin. 3). As pastoral director of the REMHI Project, Bishop Gerardi oversaw production of the report and presented it to the Guatemalan public on April 24, 1998. s In early 200~because Guatemala had not brought the three military officers charged with ordering Myrna Mack's murder to trial in its own courts Helen Mack requested that the Inter- American Commission on Human Rights of the Organization of American States begin the process of p lacing the c ase under the I egally b inding j unsdiction o f the ~ter-Amencan Court o f H uman Rights. The case was referred to He ~ter-American Court in June 2001. Due to a backlog in cases, however, the case did not come before the court until February 2003.

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16 HUMAN RIGHTS AND THE MACK CASK on Human Rights has been violated by the government of Guate- mala, reparations could be awarded to the Mack family. Since August 2002, the C~;atemalan government has been required by order of the ~ter-Arr~encan Court to take measures to protect Helen Mack and her family. That court order was reis- sued in February 2003. According to the Lawyers Committee for Human Rights, the state is required to work with the Mack family In arranging for their protection and must file a report on its pro- gress every two months. POLITICAL CONTEXT . . 6 The CHR representatives' observations, conversations, and briefings during this mission (see Appendix C) indicate that at the time of their visit the situation in Guatemala for colleagues of the CHR was worsening rather than improving, in spite of a brief pe- riod of optimism generated by the 1996 peace accords. Pressure by the international community played an important role in bnng- ~ng an end to the 36-year civil war in 1996. Dunug the war some 200,000 people primarily civilian Mayan Indians were killed or disappeared. International pressure is still critical In promotion of human rights In Guatemala. The perception of the army was that they had won the war. They submitted to a series of peace ac- cords, including democratic and human rights guarantees, as the result of outside pressure. Optimism ended with the murder of Bishop Gerardi in 1998. As emphasized by Dr. Edelberto Torres Rivas, Guatemala advisor of the United Nations Development Program, He Guatemalan institutions that In the past have provided a measure of security to threatened scholars have been weakened by internal divisions arid new pnonties. Following the completion of the truth commission report arid the assassination of Bishop Gerardi, the Catholic Church, although still a leading defender of human nights, turned increasingly to pastoral missions.

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REPORT OF THE 2002 MISSION 17 There appears to be no political party in Guatemala strongly committed to the development of truly democratic institu- tions. Some of the most influential prodemocracy leaders come from the human rights movement, including Helen Mack, Nobel Peace Prize Laureate Rigoberta Menchu Tum, and others. How- ever, these people do not constitute a political party. The tradi- tional parties are internally fragmented, and the peace accords made it easy for new parties to be legally established, which has led to a proliferation of small, weak parties. As primary elections approach (scheduled for November 2003), the Guatemalan Repub- lican Front (Frente Republicano Guatemalteco, FRG - the party of current President Alfonso Portillohas failed to gain the confi- dence of those interested in promoting democracy and the rule of law. The FRG is known for fiscal corruption and is under the con- trot of former g eneral and ax-dictator Efra~n Rios Montt, who is currently president of the Congress. Montt originally took power In a military coup in the early 19SOs and is widely believed to have been responsible for many of the human rights atrocities of that period. The general political picture is of a growing power vacuum in Guatemala, with the potential sources of political leadership including traditional political parties, the Catholic Church, indige- nous and campesino groups, labor unions, those representing busi- ness interests, and even the military internally divided or weak. Nevertheless, the military is still, as in the past, the dominant con- troll~ng force. This power vacuum is being filled by covert groups ("cuer- pos clandest~nos") that issue death threats (see Appendix D) and sometimes calTy them out and by a revival of paramilitary groups Hat were formerly allied with the military. President Portillo has reportedly referred to these groups as "a parallel power structure." Judges, prosecutors, human rights workers, and indigenous leaders, as well as scientists, have become targets.

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i ~ - 18 HUMAN RIGHTS AND THE MA CK CASE ~ an ironic twist, some fanner members of the Civil Self- Defense Patrols (Patrullas de Autodefensa Civil, PACs) recently went on strike and demanded reparations for their services to the nation during the civil war. Their wartime services included mur- denug, displacing, torturing, and otherwise persecuting the indige- nous population alleged to be supporting the insurgency. These people are financially desperate because of unemployment associ- ated with the coffee crisis that has resulted from drought and com- petition. The former members of the PACs are being encouraged in their demands by radio broadcasts and ex-militaly hardliners promoting the reestablishment of the PACs. The government, with elections approaching in October 2003, has promised to pay them. Rigoberta Menchu Tum and others have been quick to point out that not only does the proposed payoff promote intense divisiveness among the communities of the rural poor, who remain fearfi~! and disorganized since the civil war, but it focuses on the rural PAC members as those responsible for the atrocities instead of on the military that promoted and condoned their acts. Meanwhile, the EMP has not been eliminated, despite a stipulation for its elimination in the peace accords.6 This is the unit to which the convicted murderer of Myma Mack, Noel de Jesus Beteta Alvarez, was attached and whose former leaders were tried as intellectual authors of the Myma Mack murder. The cIan- destine groups now operating in Guatemala are similar in the way they fimction and who they target to the EMP during the . ClV1. ~ Wale. 6 In late 2002, President Portillo took what he has called the first step toward eliminating the EMP by reducing it by 25 percent, and he reportedly planned another similar cut in March 2003. The Guatemalan press, however, has reported that the 162 individuals who were dropped from the EMP were mostly personnel who were close to finishing their service requirements. It should also be noted that, in order to fully and properly dismantle the EMP, the ley constitutiva (constituent law) would need to be amended by the Guatemalan Congress. To our knowledge no such step has been taken.

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REPORT OF THE 2002 MISSION 19 The Cows Guatemalan colleagues and those concerned about their welfare worry that the human rights situation in Gua- temala will worsen even further In 2003, with the expiration of oversight of the peace accords by the United Nations Mission to Guatemala (Mision de las Naciones Un~das en Guatemala, MINUGUA). In a speech before the U.N. General Assembly on September ~ 2, 2 002, P resident P ortillo b nefly su ggested t hat t he U.N. peace mission be extended to 2004. The day after the speech, however, press reports (Siglo Ventiuno, September 13, 2002) indi- cated that the United States opposes this plan but will study it. Other countries were cited as supporting an extension. Additional mechanisms by which to apply international pressure will need to be initiated to slow or prevent further detenoration of the human rights situation for academics in Guatemala. Scientists at AVANCSO, especially those engaged in re- search similar to that of Myoma Mack with the internally displaced populations, have recently been victims of death threats (see Ap- pendix D) presumed to be from the clandestine groups discussed above. As a result, in the weeks prior to the trial, Helen Mack and Clara Arenas found it necessary to leave the country for brief peri- ods (2-4 weeks) for security reasons, and, dunng the third week of the trial (on September IS, 2002), He family of Helen Mack's lawyer, Roberto Romero, also left Guatemala because of death threats. By keeping close records of threats and other kinds of har- assment, AVANCSO researchers have noted that peaks in these activities are associated with events such as publication of their books or of prominent human rights reports by observers (such as the U.N. Special Rapporteur on Human Rights Defenders, Hina lilani) with whom they had conferred. Repeated appeals to the government to deal with these threats reportedly have had no ef- fect.

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20 HUMAN RIGHTS AND THE MACK CASK AVANCSO scientists explained to the Cow representatives that they wish to emphasize their role as professional researchers whose work has application in improving the well-being of the Guatemalan people. They stressed that such research is distinct Tom human rights activism. They have charactenzed the kind of international support they need as "academics for academics." The CUR is seen as especially effective in providing this type of sup- pod. , . . -