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An Open Letter to Vicente Fox

Lessons on Justice from Guatemala

by KATE DOYLE

President Fox,

Something remarkable has happened in Guatemala. You owe it to your country to take notice.

On January 20, the Guatemalan Supreme Court upheld the conviction of a senior military officer, Col. Juan Valencia Osorio, for plotting and ordering the political assassination of Guatemalan anthropologist Myrna Mack Chang in 1990. The colonel has been sentenced to 30 years in prison.

I imagine you are as surprised as I am that Guatemala — infamous the world over for a bloody civil war that lasted more than three decades and resulted in the death or disappearance of some 200,000 civilians at the hands of government security forces–has managed to hold a fair trial in a civilian court of a high-ranking military officer and bring him to justice!

You, President Fox, have pledged to advance criminal cases related to human rights violations committed by the Mexican government against its own citizens during the height of authoritarianism and repression in Mexico during the 1950s – 80s. You have spoken publicly many times about the extraordinary challenges facing your administration in a country where impunity has for so long favored government officials and members of the police, intelligence, and military forces.

Yet today, more than three years into your administration, we seem no closer to indicting and prosecuting members of the Mexican armed forces in civilian courts than we did before the political transition.

To be sure, you have appointed a special prosecutor to investigate crimes committed during what Mexicans now call their "dirty war." Against all odds, Dr. Ignacio Carrillo Prieto has begun to assemble legal cases against high-ranking civilian officials, such as Miguel Nazar Haro and Luis de la Barrera, for the abduction and disappearance of the Mexican left.

To date, however, Dr. Carrillo has been silent on the subject of prosecutions against active or retired military officers. And the only case currently pending against senior military personnel is being tried in a military court, against the recommendations of every national and international human rights organization that has weighed in on the issue.

Why is that, Mr. President? Why the reluctance to subject members of your armed forces to the same judicial standards that the rest of Mexico is expected to uphold?

Guatemala has long been associated with impunity for the military in spite of evidence of crimes against humanity. Yet that country recently convicted a powerful army officer in a civilian court of law. How did Guatemala succeed where Mexico has so far failed?

Military Officers, Civilian Justice

Myrna Mack Chang was a scholar and an anthropologist who documented the fate of indigenous communities on the run from the army’s brutal counterinsurgency operations. Her work infuriated government and military officials. On September 11, 1990, army intelligence specialist Noel de Jesus Beteta stabbed her twenty-seven times as she left her office in downtown Guatemala City. She was left to die on the sidewalk.

Myrna’s sister Helen–until then a conservative businesswoman, with little interest in the kind of political and social inequities that preoccupied her sister–adopted the murder case as her personal campaign when she realized the government was stalling the investigation. Helen’s success in winning a conviction against Beteta in 1993 and her subsequent fight to bring his superiors to justice quickly made her a national human rights hero.

When Myrna was killed, Beteta was working for a clandestine military intelligence unit that belonged to the Presidential General Staff (EMP). Reasoning that the Guatemalan armed forces–like most military institutions–relied on obedience within a rigid hierarchy, Helen Mack and her lawyers identified Beteta’s commanding officers and accused them of planning and orchestrating the murder. There were three of them; Juan Valencia Osorio was one.

The officers argued that their case fell under the jurisdiction of the military prosecutor, and they almost won. Until recently, Guatemalan practice–as in Mexico today–was to try members of the armed forces within the military justice system, regardless of the alleged crime. In 1996, however, during the final stages of the peace process that would end the civil war, the Guatemalan Congress passed a law sharply reducing the power of military tribunals so that they could try only disciplinary offenses and other violations of the military code. The change brought to a halt Guatemala’s record of near total impunity for human rights crimes within the military justice system. (1)

Mexico has so far been unwilling to change its own reliance on the military justice system to investigate violations committed by soldiers and their superiors. It is a system shrouded in secrecy and damaged by allegations of negligence, delay, and outright cover-up. Human rights reporting has shown repeatedly that the overwhelming majority of complaints brought by citizens against military abusers are not properly investigated. Evidence is lost or destroyed, witnesses are threatened, statements are fabricated, and the entire process is shielded from civilian scrutiny. The few human rights cases that have resulted in the imprisonment of military personnel were resolved only after years of national and international pressure.

If the system of military justice only reinforces impunity, what can Mexico do to change it? The Constitution is unambiguous on the issue: Article 13 permits military jurisdiction exclusively for "offenses against military discipline." But as your government and the recent United Nations-sponsored Human Rights Diagnostic observed, the Code of Military Justice defines military jurisdiction so broadly as to render the constitutional provision meaningless, covering all "offenses under common or federal law… when committed by military personnel on active duty or in connection with active duty" (Article 57). (2)

Mexico lags behind much of the rest of the hemisphere, Mr. President. Guatemala has joined Argentina, Chile, Peru, even Colombia, among other countries in Latin America, that have successfully changed their laws to limit military jurisdiction to cases involving violations against military discipline. All of those countries have also successfully tried military personnel in civilian courts. If you are truly committed to transparency, why continue to permit a secretive system of injustice to prevail in times of political transition?

The Power of the Documents

President Fox, you took a courageous and unprecedented stance in favor of accountability when you ordered the opening of hundreds of thousands of government files on the "dirty war" to public scrutiny. Investigators from the Special Prosecutor’s Office have spent months combing these files for evidence of government complicity in human rights crimes.

But although the Mexican armed forces turned over some internal documents to the national archive in response to your directive, the military has not been forthcoming in response to direct requests for information from Carrillo Prieto’s office.

In a detailed report on the obstacles faced by the Special Prosecutor published in July 2003, Human Rights Watch detailed instances when the military failed to provide investigators with basic information that would assist their work. For example, when the Special Prosecutor’s Office requested information about military personnel assigned to a military checkpoint in a town in Guerrero, the army prosecutor (Procurador General de la Justicia Militar–PGJM) responded in a letter dated March 2003 that "no information was found relating to the incidents that you mention." When asked for the names of officers who served in the Atoyac military base in 1974, the PGJM responded that the Special Prosecutor’s Office would have to provide the officers’ names itself, explaining that "given the constant promotions and demotions of personnel in the Battalion and the time that has passed since 1974, it is not feasible to provide the documentation in the archives as has been requested."

Even when the Special Prosecutor’s Office has supplied the names of officers, the PGJM has claimed that it could not find files on those individuals. In one case, the Special Prosecutor’s Office provided not only the name and rank of an officer, but also the military base he served on and the dates he was there–yet, still, the PGJM claimed it could find no information on the officer. (3)

That kind of outright stonewalling by the armed forces took place in the Mack case as well. Prosecutors sought military records documenting a range of issues they needed to build their legal argument–including records on the organization and operations of Guatemalan army intelligence; logbooks tracking the exit and entry of military vehicles and personnel on the day of the murder; intelligence information gathered on the victim; and biographic material from the military careers of the three officers on trial. Most of the information requested was denied. According to letters from the Defense Ministry to Mack’s lawyers, the records had been destroyed, were protected for "national security" reasons, or never existed at all.

What makes the Mack case unusual is that although Guatemalan military records were not provided to prosecutors, relevant United States documents were. Released to researchers under the Freedom of Information Act from the secret archives of the CIA, the Pentagon, and the State Department and made available to the lawyers, they identified the Mack assassination as a government-planned hit and described the army intelligence units behind it.

In one cable sent by the U.S. Embassy shortly after Myrna’s murder, then-Ambassador to Guatemala Thomas Stroock portrayed a government policy of "selective violence" and provided chilling detail on how the killings were covered up.

"The sort of hit discussed here is carried out or directed by individuals who are members of the security forces, often military intelligence," wrote Stroock. While the attacks were decided and organized at a "senior level," they were carried out by "security personnel who often do not know the reason for the killing/kidnapping they are to undertake or from exactly where their orders came. ‘Death squad’ personnel might often not appear on the official rosters of the security services and do not report for duty to official installations; they wait at home for orders, usually via the phone, or at times are picked up without prior notice to perform a job. They operate in cells so it is difficult to trace the orders up the hierarchy."

These documents existed because of the intimate relationship between the United States and Guatemala from the start of the civil war in 1962 until it ended with the signing of peace accords in 1996. Despite U.S. knowledge of the army’s role in nearly 200,000 civilian deaths, military and economic aid and covert intelligence support flowed almost uninterrupted for thirty years. All three of the officers accused of planning Mack’s assassination received training in U.S. military schools.

Thousands of documents also exist in U.S. files concerning the Mexican dirty war. They include CIA reporting on leftists and suspected subversives, defense intelligence on the operations of the Mexican Army, reports from the FBI from its liaison with the Direccion Federal de Seguridad (DFS), and U.S. Embassy analysis on the Mexican government’s political decisions. Access to these documents would provide new details about the cast of characters and their motives behind the staging of the dirty war.

In fact, in May 2003, Dr. Ignacio Carrillo Prieto drafted a letter addressed to President George W. Bush seeking his help in identifying and opening U.S. records that might assist the Special Prosecutor’s Office in its investigations into human rights abuses. Obeying protocol, Carrillo Prieto forwarded the letter to the Attorney General, retired Gen. Rafael Macedo de la Concha, for his signature. The letter has been sitting on the general’s desk for almost one year. Why, Mr. President?

Intimidation and Murder

Twelve years after Myrna Mack’s murder, in September 2002, the trial of the men accused of planning the killing took place in a crowded courtroom in the capital, just blocks from the street where Myrna died. Hundreds of spectators filled the folding chairs. Military families sat elbow to elbow with the country’s leading human rights activists–including Helen Mack.

Simply to be in the courtroom was to make history. From the day Myrna was killed, Helen and her allies were relentlessly pressured by surveillance, harassment, death threats, physical attacks, and murder. In 1991 the government’s chief homicide investigator was assassinated in Guatemala City. Key witnesses were silenced or forced to seek refuge outside the country. Judge Henry Monroy, who in 1999 ordered the trial to proceed against the three officers, resigned from the judiciary and fled Guatemala because of threats on his life. Even as the trial was under way, Mack’s lead lawyer sent his wife and three children out of the country after a series of frightening incidents, including a drive-by shooting at their house.

The case survived, no thanks to the Guatemalan government–indeed five successive presidents permitted or actively participated in the cover-up that immediately went into motion after the crime. It survived because of the determination of Helen Mack and the support of her family, as well as a series of extraordinarily brave public prosecutors, judges, eyewitnesses, and human rights advocates.

Mexican citizens connected to human rights cases implicating security forces also suffer from intimidation and violence. Relatives of the victims have been detained and tortured; witnesses–such as Horacio Zacarias Barrientos of Guerrero–have been killed. Entire communities living in remote rural villages have been threatened by a sudden increase in police or military presence. Here you have the historic opportunity, President Fox, to set a new precedent by taking a firm public stand against threats or violence that jeopardize the rule of law.

After a final appeal by Valencia Osorio’s lawyers, the Supreme Court issued its definitive ruling upholding his conviction last month. The decision closed a chapter in Guatemala’s political transition that remained open for nearly 14 years, and brought some relief and satisfaction to the Mack family.

As Helen Mack will tell you, Mr. President, insisting on justice for military criminals is a tough business. It is not a job for the faint-hearted.

Yours respectfully,

KATE DOYLE

KATE DOYLE is director of the Mexico Project of National Security Archives and a regular contributor to the Americas Program of the Interhemispheric Resource Center.