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Emerging Out of the Fog

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 Two precedent-setting verdicts for a crime with over 45,000 victims in Guatemala

by Nathalie Mercier 

The image of our goodbye in his village is one I won’t forget. We had arrived at his one-room adobe house just before dusk. There had been a tropical downpour earlier that day, but it had only lasted 30 minutes. So we weren’t too concerned when the heavy rain started again as we sat and chatted.

Half an hour later the storm was showing no signs of letting up. Nevertheless, we decided to go: walking in the village after nightfall was not a good idea, especially given the security situation during a trial.

His house is at the top of a small path. But the path is just earth which the rain had predictably turned to mud. After a few steps there was no going back. I looked apprehensively at the man we had visited who had become my friend. “Come on, I’ll help you,” he reassured me.

He kept me on my feet as I edged down the treacherous slope, wrapped in a bin-bag in a futile attempt to keep dry. We parted when I had just one more step to take. And the image of him which I have burned in my memory is him on that slope, looking down at me with fatherly concern through the fog of the heavy downpour.

The real storm

This was just a prelude to the real storm that was about to rage, this one in the courtroom. The next day, when I saw him for the final time before I left Guatemala, the encounter was brief and formal. The trial opened that day and he was a witness. I could hardly believe that finally the court case was beginning. I’d been visiting the witnesses for nine months as an international accompanier,  and progress in the case had been painfully slow. But, of course, I had only been with them for a fraction of the time of their suffering.

For the witnesses it had been 28 years since their relatives were forcibly “disappeared” from their rural village, El Jute, in the department of Chiquimula. Eight members of the community were taken on the 19th October 1981, during the worst period of the long years of violence of Guatemala’s internal armed conflict (1960-1996), by a former army colonel and three former military commissioners (similar to paramilitary leaders). The witnesses I saw on a regular basis would tell me of that day and the terror it brought. Terror followed by a silence that continues to this day.

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Silence is a characteristic of the crime of “forced disappearance”, which is recognised internationally as a crime against humanity. In Guatemala, over 45,000 people were “disappeared” during the internal conflict. Victims simply vanished as though into a fog, never to be seen or heard of again, and their relatives were denied information as to their whereabouts or fate. Without knowledge of what happened, the relatives often stay in limbo.

Interviews with relatives of people who were “disappeared” reveal time and again behaviour such as continuing to set a place at the dinner table for their loved one, even though they have been gone for many years. The lack of any kind of final ceremony or proper burial means that there is no opportunity to close the grieving process. The link between the living and the dead is particularly pertinent in Mayan culture, which emphasises the way in which deceased relatives guide their loved ones through life, thus the severance of this link causes great distress. Worth bearing in mind when one considers that 83% of the victims of the conflict were indigenous Maya.

In Guatemala, the fog of past forced disappearances continues to this day and effectively obscures a large part of the country’s recent brutal history. 

“Forced disappearances” or kidnappings?

Judges are reluctant to classify cases as “forced disappearance”. Most of the relatively few cases currently under investigation have been classified as “kidnapping”. The difference? Because of the multiple human rights violations involved and the role of the State, “forced disappearance” is defined as a crime against humanity, whilst kidnapping is not. Thus kidnapping could technically be granted amnesty under the Law of National Reconciliation of 1996, a law that grants amnesty for crimes committed during the armed conflict (provided that they are not crimes against humanity). In a somewhat Orwellian fashion, this law often seems to stand in the way of judicial processes that might lead to reconciliation and compensation for the victims.

In the case of El Jute, the panel of judges dismissed the classification of “forced disappearance” on multiple occasions during the hearings, yet in the final sentence they did convict the former colonel and three former military commissioners for that crime. Before that, only one case had been accepted as “forced disappearance”: the case of Choatalúm.

The Choatalúm trial

I also observed this trial. I was in the packed courtroom on 31st August 2009 as we collectively held our breath and heard the judge say the words that would make history: “Our belief in Cusanero’s innocence has been destroyed.” With that, former military commissioner, Felipe Cusanero Coj was sentenced to a total of 150 years of imprisonment for the “forced disappearance” between the years 1982 and 1984 of six members of the Maya Kakchiquel community of Choatalúm in the department of Chimaltenango.

The Choatalúm conviction was the first in Guatemala for the crime of “forced disappearance”.  It marked the end of one phase of a long struggle for those involved in the case. There had been many hurdles to overcome.

One month after the trial’s opening in March 2008, the defence claimed that the trial violated Article 15 of the Guatemalan Constitution, which states that laws cannot be retroactive. The events took place between 1982 and 1984, but the crime of  “forced disappearance” was only formally recognised in Guatemala in 1996, so the defence argued that the case could not be tried.

An injunction was sought in April 2008. The Guatemalan Constitutional Court took 15 months to announce the resolution in favour of the prosecution. The resolution made reference to international conventions on “forced disappearance” and concluded that the crime is permanent in nature, the key issue being not when the crime started but rather when it ceases to be committed. With the fate and whereabouts of the victims still being kept secret, the crime continues to this day.

The Choatalúm decision is highly significant for its potential to set a precedent for other cases. Hearings in the El Jute case opened just weeks after the Choatalúm sentence and in December 2009 each of the accused was sentenced to 53 years in prison. Significantly, this is the first time that a high-ranking member of the Guatemalan military has been found guilty of “forced disappearance”.

Still a long way to go

It seems that, with the sentences in the cases of Choatalúm and El Jute, some of the fog surrounding  “forced disappearance” in Guatemala is starting to disperse. But the process is far from over. 

In both cases, the victims’ relatives expressed that, above all,  they just wanted information on their loved ones’ fate and their whereabouts. In one way, the trials brought justice but they still did not reveal information about what happened to the “disappeared”. The continued silence  on this means that the suffering of the relatives continues.

Then there are the numbers. Two cases. Twenty-eight years have passed. Over 45,000 victims.

It’s definitely a long road. But every journey has to start somewhere.

*Nathalie Mercier worked as a human rights observer in Guatemala from January to September 2009 with the project, ACOGUATE,. She was  a representative of the UK organisation the Guatemala Solidarity Network. During her time in the country she worked with witnesses in the cases of Choatalum and El Jute, as well as in various cases dealing with issues such as trade unionism and the defence of natural resources.