...we conclude that the sort of hit discussed here is carried out or directed by individuals who are members of the security forces, often Military Intelligence (D-2) but also others from presidential security, zone commands, and occasionally the civilian police forces. How high up the orders come from probably depends on the particular case and the people in senior positions in the security forces."
—US Department of State (secret cable), 10 May 1991

The search for justice in the death of a human rights worker

One of the more dangerous callings can be working in the interest of human rights. This is especially true in a country like Guatemala which has one of the worst records in the hemisphere and an all but official policy of impunity. In fact, investigating and reporting on human rights abuses can be deadly.

Background
Myrna Elizabeth Mack Chang was a 40 year old Guatemalan anthropologist (her parents were Chinese immigrants). She had done her studies in Britain but had returned to her country in the 1980s. She worked for the Asociacion para el Avance de las Ciencias Sociales en Guatemala (Association for the Advancement of Social Science in Guatemala, AVANCSO). She was studying and writing about the government's forced internal displacement of Guatemalans (poor, indigenous Mayan people almost exclusively) as well as their treatment at the hands of security forces during the over 30 year civil war. She would become another of its victims.

In 1989, Mack published a study that showed the government, through its "counterinsurgency" program was responsible for putting the campesinos in the middle of the fight between them and leftist guerilla groups hoping to depose the brutal regime, put in place by the United States following the 1954 coup (that the US had organized and helped orchestrate). These policies included mass removal to what were essentially concentration camps, forced enlistment in paramilitary groups (many were de facto death squads), general repression and discrimination, and even massacre. All under the guise of being part of the counterinsurgency program, which made any civilian a suspected guerilla or sympathizer.

The Historical Clarification report published in 1999 (the civil war ended in 1996) determined that of the estimated 200,000 people killed during those years, the vast majority were unarmed noncombatants, often women and children. It also determined that government or paramilitary forces were responsible for over 90% of the deaths. It registered some 626 massacres.

Mack's study was primarily involved with the over 1,000,000 displaced people. During what was called (by the Guatemalan people) la violencia, many campesinos organized into a group calling itself Comunidades de Poblaciones en Resistencia (Communities of Population in Resistance, CPR). They maintained they neither supported the guerillas or the violence. The government drove the movement underground and spread disinformation about them. This allowed any deaths to be treated with the same impunity as any other killings perpetrated by the security forces.

Since the government was beginning peace talks at the time Mack published her paper—which demonstrated that the CPR was not affiliated with the guerillas and was suffering from government repression/violence—it damaged the government's credibility and weakened its position. This made her dangerous to them. It made Myrna Mack a target.

1990

It was another 11 September. Myrna Mack left the AVANCSO offices in Guatemala City to return home. While walking down the street, two men came out and attacked her. After the flurry of violence, she lay on the ground dying of 27 stab wounds. The assailants then stole her purse, portfolio, and a plastic bag she had with her. It turned out that she had been under surveillance for two weeks.

There actually was an initial investigation, such as it was. Members of the Criminal Investigations Department (headed by the General Director of Police) arrived shortly after the murder. They were followed by the Justice of the Peace on duty, who ordered that her body be brought back to the Forensic Services Office for autopsy. The autopsy revealed wounds to the neck, thorax, and abdomen that had resulted in hypervolemic shock (shock brought on by—usually rapid and massive—blood loss). The type of weapon was also determined at that point (knife).

Despite the quick early response, the incompetency (or deliberate obstruction of the investigation—more likely) began at the same time. During the autopsy, there was no analysis of the victim's hair nor was there any of the pieces of skin that had been found under her nails that were almost certainly the result of her attempt to defend from the attack. Her clothing went unexamined as was what was left of the plastic bag she still had in her hand. The crime scene was not secured and the police claimed that no fingerprint testing was done due to the rain that day. Rain that did not fall until hours after the arrival of the police.

At the end of September, a report was completed by homicide investigators José Mérida Escobar and Julio César Pérez Ixcajop. In it, they named a suspect—Noél de Jésus Beteta Alvarez—based on questioning of the suspect and eyewitness descriptions. It also stated that he had acted under orders from his superiors in the Estado Mayor Presidencial (Presidential General Staff, EMP). Beteta also named one of the men responsible for the order, one (General) Edgar Agosto Godoy Gaitán. But then on 4 November—less than a week later—a new report appeared, declaring it to be a killing in the course of a robbery (this was the initial position of the US State Department). It disregarded parts of evidence, one particularly contradictory to the robbery claim: when she was attacked, neither her car nor her jewelry were taken.

In October, frustrated at the speed and results of the investigation, Myrna's sister Helen took the role of private prosecutor with the help of an attorney. This position is allowed under Guatemalan law and is independent of the Public Ministry (who were supposed to be prosecuting the case). She attempted to enter for prosecution the names of two others who had taken part in the surveillance. She also tried charging Gaitán, (Colonel) Juan Valencia Osorio, and (Colonel) Juan Guillermo Oliva Carrera—all of whom were mentioned in the first report. They were the "intellectual authors" of the crime.

Had she not intervened, the story would likely end here.

1991

Things began to fall apart. While Escobar testified in court to ratify the September report on June 26, just over a month later he was shot and killed in the parking lot of the police offices. Though he had been working on the Mack case and preparing for court, the murder was treated as separate from the Myrna's death. Later Peréz left the country because of threats on his life. It later came out that both men had approached the Director of Investigations for the Human Rights Ombudsman's Office, with concerns for their safety. Peréz was convinced that Escobar had been murdered by state security forces.

Two of the eyewitnesses (of the surveillance) then refused to testify, one saying it was out of fear for his "security." Two other witnesses (of the murder) were also unavailable to testify after having fled the country. The house of one of them had been machine-gunned by a group of armed men.

In order to prove the case against the men, the prosecutors requested military records and details concerning the organization and makeup of the EMP and parts of the Defense Ministry. This request was, unsurprisingly, rejected on the grounds that it related to state security. Helen kept trying to get a protective order issued in order to keep anything from happening to the evidence before prosecutors were able examine it.

1992

During the next year, about the only positive thing was that the court overturned the decision. It only helped a little, as some of the documents the prosecution finally received were found to be altered (of the ones they actually received). The rest of the year was typical of the way the case went.

In February, a judge (over the course of the case, over twelve judges would be involved) ordered it to be tried in a military court, since the suspect(s) were on active duty at the time of the crime. The next month, it was sent back to civilian court. At that time, the trial was set to begin in May. Helen petitioned to allow the parameters of the case to be that it was a premeditated and ordered act, which would bring in the "intellectuals authors." This was denied and a second appeal to get a new judge, based on the presiding one having denied evidentiary requests, was launched. It was successful.

The trial begin, including testimony or signed affidavits attesting that the crime had all the elements of a political killing. Also during that time, it was revealed that Helen had been under surveillance since 1991 by men on foot or in unmarked vehicles with missing license plates. Gaitán testified, though it was often limited (sometimes by the judge) for the usual reasons of security. There was enough information to infer that involvement was likely, though he claimed that, while the EMP examines and analyzes "factors of power," it does not concern itself with matters of displaced persons or others that were part of Myrna's work. This was contradicted by witnesses from the governmental agency involved with refugee assistance who testified that the EMP kept in contact with their offices to gain information on refugees and displaced people.

1993

The trial progressed. Even though it was only against Beteta, enough evidence came out to suggest the connection with security forces that the prosecution claimed. During her summation, Helen asked for investigation into the other "authors" of the murder. It would be later be rejected.

On 12 February, Beteta was found guilty and sentenced 25 years in prison (incommutable). The very fact that a member of the armed forces was convicted and sentenced was nearly unprecedented, despite denial that security forces were not involved and the crime was not political. It also found him to be the single person responsible for the death of Myrna Mack. Anything else had insufficient evidence according to the court (they based much of that on the November police report). Beteta appealed.

The prosecution appealed the ruling, as well as asked for "clarification" and "amplification." After being denied, a petition for casación was made to the Supreme Court, which requested the appellate decision be examined (she alleged that her rights had been violated as part of the workings the case). It named the others involved. At that time, the public prosecution team (with the backing of the Public Ministry) refused to continue with the case in any way except to determine the second man involved in the actual stabbing.

1994

In February, both Helen's appeal and that of Beteta were denied (the latter affirmed the conviction). On the other hand, it also ruled it would analyze the appellate decision (though not for the specific reason Helen had appealed). The court decided that the private accuser had the right to proceed with the accusations and the denial had violated that right. It then ordered that a criminal trial be initiated against all those named previously (the three officers and three who helped in the surveillance) and their involvement in the crime would decided at the new proceeding.

The new trial began later in February. According to the new Criminal Procedure Code (CPC), the case would be tried in a military court because the accused were military men. Meanwhile, the accused appealed to the nation's highest court, the Constitutional Tribunal, to get the Supreme Court ruling reversed.

While that played out, Helen requested and petitioned for documents and other evidence from the military/EMP that could be used in the case to determine whether they were the "intellectual authors" of the crime as well as protection for the material. It continued to be asserted by the military that it revolved around national security—a claim that should not have been so problematic as the new CPC provided for a judge to privately examine such material before (confidential) entry into evidence to determine whether or not it was relevant.

Helen petitioned on 18 March and it was rejected that same day. A petition for the reasons why was likewise rejected (21 March—she was not informed for over two weeks). She went to the Constitutional Court and, once again, her appeal was rejected (18 October). In December the court also rejected her request for reasons why it had ruled as it had.

On the other hand, the accused's appeal was also rejected in December.

1995

There was little progress in the case during much of 1995. Having been rejected by the court, Helen, working through the Archbishop, pled the issue of the documents with the president—the former Ombudsman who had earlier declared the crime as political in nature. According to him, he had made the request to the military and been told there were no such documents.

Things began to improve later in the year, when in September, a new civilian prosecutor was appointed under the CPC. Following his investigation, he agreed that the three officers were, indeed, the intellectual authors of the murder. More than 20 witnesses were found and testimony gathered, some from the current or ex-military (testimony was also elicited from the accused). He also put into motion attempts to get testimony of people who had fled the country due to threats on their lives or families.

Of the information that was obtained from the security forces, some of it was made up of documents that they had previously claimed to be nonexistant.

1996

As a result of the invigorated investigation, an indictment was issued against the accused (June). On the other hand, despite the nature of the crime, they were all allowed bail and only had to make appearances every two weeks to sign in. An appeal against this was rejected. Not long after the indictment, laws were enacted that limited the jurisdiction of the military courts to violations of military code and disciplinary violations, eliminating common crimes committed by members from its purview. This transferred the trial (back) to a civilian court.

The judge assigned to the case then decided that it was to be tried under the old version of the CPC. The appeals court ruled that it could not be appealed and, in October, the Supreme Court ordered the case be tried under those rules/laws. This led to a December decision by the trial judge that the three officers be "accumulated" with Beteta. This stopped progress when a lower court ruled that it made Beteta's conviction res judicata. The team had to file another petition with the Constitutional Court over the October decision.

In December, the decades old civil war "ended" with the signing of the peace accords. Little did they suspect that this would add another problem to the case.

Another development was the Inter-American Commission on Human Rights (an organ of the Organization of American States) ruling that the delays and impedance of justice were so great that the government was in violation of international law by not preventing them. It would later rule that, because Guatemala still did not comply with the request to bring the matter quickly to trial, that it would be referred the Inter-American Court of Human Rights. (The ruling was supposed to take place in late 2002; I am unaware of the decision.)

1997

One result of the peace accords was an attempt for reconciliation. Part of it was a broad grant of amnesty, covering political crimes and other crimes related to the civil war. Unsurprisingly, in January, the three officers were some of the first to file for amnesty under the new laws (the National Reconciliation Act). The court ruled in February that the petition was invalid, as the murder of an unarmed civilian on a public street did not meet the standards for the application of the law. Several more appeals were launched but all were rejected. They were allowed to petition for amnesty again in September but were rejected.

Meanwhile, the prosecution's petition against the October ruling of the previous year was granted in August, reinstating the indictments and allowing the investigation to resume.

1998

In February, the case was finally transferred to the court where the trial would take place (or not). The "investigative phase" of the proceedings began—something that, according to law, should have taken place within six months of the June 1996 indictment. Because of the constant appeals and delays, the phase was set to conclude in June 1998. Problems with attaining evidence from the military continued and there was concern that newest judge would not help in the matter, which seemed justified given his reluctance to examine the documents and determine if they were, indeed, matters of national security (something allowed for in the new CPC).

The prosecution made its request in March for the evidence relevant to the case. It was also requested that the person in charge of the documents be held accountable to the same laws concerning contempt of court as anyone else. This was initially rejected on legal grounds and another request (using different language) was lodged and the judge ruled the Ministry had eight days to comply (it did not). No action was taken on that matter of noncompliance at the time.

More problems with the judge came when, as per a ruling of the military court in 1996, testimony was requested of Guatemalans who had fled to exile in Canada. The judge did not rule on the matter until the final date of the investigative phase, leaving the prosecution the onus of having to present its charges without important evidence. Because of this, Helen appealed to have the judge removed. It was granted, the judge removed, and the trial moved to yet another court with another judge on 17 September. The prosecution was not notified until thirteen days later.

In Guatemalan law, there is a (oral) hearing of the evidence that is conducted within 15 days of the presentation of accusations. At that time, the judge determines whether the case goes to trial. Following the latest changes, a new hearing was set for the end of January the following year.

Also, late in the year, the time period for the public prosecutor expired leading to another being assigned to the case. More musical chairs.

1999

Helen and her team, with help from the Lawyers Committee for Human Rights (involved with the case from early on), had asked the US State Department for documents and files pertaining the Guatemalan security forces through the Freedom of Information Act. The State Department gave the entire proceedings a boost of confidence when it issued a statement in January (two days before the hearings were to begin) that said if the murder was political, then the officers must be assigned responsibility for the crime.

One document from 1991 mentioned the case (among others) as examples of what the State Department termed "selective violence," calling the it a "brutal murder" (as well as characterizing Myrna as a "leftist anthropologist"). Other documents describe the security and intelligence services in Guatemala.

In short time, the judge decided the evidence was sufficient to go to trial. It was then moved to another court where the defense tried motions and appeals to stall the case, remove one of the three judges, and to get the trial moved back to a military tribunal. Each time, the attempt was rejected but because there is nothing to limit the motions/appeals or to discourage/punish repeated attempts, they would continue to slow progress. In fact, it would be the main feature of the next few years.

In April, a large stone wrapped in a plastic bag was left outside the church where Helen was attending the funeral mass for her recently deceased father. It was likely a chilling reminder of the murder of Bishop Juan Gerardi in 1998. Just days after he released the church's report on human rights abuses during the civil war. He was bludgeoned to death with a cement block.

2000-2001

Delays brought on by the defense continued. In March 2000, Helen and the Lawyers Committee requested that the trial be considered by the Inter-American Court of Human Rights. Interestingly, at that time, the Guatemalan government went on the record in an admission that the State bore both material and intellectual responsibility for Myrna's murder and other human rights violations over the previous decade.

It was called by all involved an unprecedented move by a government that had previously denied or ignored such accusations and was riddled with institutional impunity. The government promised to provide many of the materials relating to the security forces that had not been provided. It also agreed to a timetable for the course of the trial.

Admissions and promises aside, things barely sped up. The date for the trial to (finally) begin was set for October 2001 but was postponed while still more motions and appeals and legal dodging took place. Myrna's denial of justice would last another year.

2002

After nearly twelve years of waiting and legal and political roadblocks, the trial of the three officers began on 3 September. In addition to the legal delays, members of the prosecution and witnesses continued to be threatened, increasing as the trial date neared. In August, one of the lawyers working for the Fundación Myrna Mack (Myrna Mack Foundation, a human rights group founded in memory of the victim) received death threats and had his home shot at. This resulted in both the Lawyers Committee and the Inter-American Commission of Human Rights demanding that those related to the case receive protection.

During the trial, experts were brought out to testify to the organizational and methodological aspects of the security services. Also helpful were the documents acquired through FOIA. Things were still difficult, especially when Beteta retracted his earlier testimony that implicated the officers. He claimed that the prosecution team bribed him with cocaine in return for the alleged perjury.

But, finally after twelve long years, a verdict was handed down on 3 October. But was it justice? Maybe. Colonel Osorio was found guilty and sentenced to 30 years imprisonment.

The other two were acquitted. There is still concern about the safety of those involved in the prosecution.

Excerpt from Helen Mack's statement concerning the verdicts

I am satisfied with the 30-year prison sentence given to Colonel Juan Valencia Osorio, because he was clearly proven to be the author of an institutional crime, a special intelligence operation, which culminated in the murder of my sister.

I am not satisfied with the acquittal of General Edgar Godoy Gaitán and Colonel Juan Guillermo Oliva Carrera, for we presented sufficient evidence to confirm their participation in the planning of this institutional crime. We are going to analyze the ruling in order to determine the judicial actions to follow. That is to say, we are working on a special appeal.

Aside from the acquittal of Godoy and Oliva, the conviction of Colonel Valencia and the fact that a trial was held from the third of September to the third of October, reaffirms my conviction that is possible to see justice done in Guatemala, even when this involves twelve or more years of continuous struggle.

The historical magnitude of this guilty verdict goes beyond the conviction or acquittal of the accused. Fortunately for all Guatemalans, it represents judicial proof of the terrible human suffering caused by the National Security Doctrine, political counterinsurgency, the concept of the internal enemy, and the perversion of the intelligence agencies.

She also added that it was "the vindication of the memory and dignity of Myrna." It was also testimony to the courage and effort of a sister who refused to see that memory die.

Sources:
The Lawyers Committee for Human Rights section on the case:
www.lchr.org/defenders/hrd_guatemala/hrd_mack/hrd_mack.htm
Report from the Inter-American Court of Human Rights on the case:
wwwserver.law.wits.ac.za/humanrts/cases/1996/guatemala10-96.htm
Helen Mack's statement:
www.maryknoll.org/GLOBAL/ALERTS/mack_results.htm
Human Rights Watch and Amnesty International:
www.hrw.org and www.amnestyusa.org
St. Petersburg Times:
www.sptimes.com/2002/10/03/Worldandnation/Justice_system_inches.shtml
US declassified documents on Guatemala:
www.gwu.edu/~nsarchiv/NSAEBB/NSAEBB15/

A more in depth look at abuses by the Guatemalan security forces, viewed through a series of massacres, can be found in the "Rio Negro massacres" writeups: 1, 2, 3

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