Envío Digital
Central American University - UCA  
  Number 263 | Junio 2003



The Myrna Mack Case: Continuing Impunity

A country isn’t viable unless people have confidence in its justice system, and Guatemala’s justice system has once again proven itself unworthy of any such confidence. In the eyes not only of its citizens but also of the whole world, the system is ineffective, weak and more than willing to ensure the impunity of the groups in power that hold it hostage.

Helen Mack and Carmen Aída Ibarra

The verdict issued on May 7 by the Fourth Appeals Court acquitting the three high-ranking military officers involved in the 1990 assassination of anthropologist Myrna Mack was full of legal inconsistencies and anomalies. A few brief lines devoid of sound reasoning or any solid legal basis overturned the results of the historic trial held in September and October of 2002.

Another lost opportunity

Myrna Mack was brutally stabbed to death when she left her office one evening in September 1990. She had been researching and documenting the counterinsurgency tactics that the Guatemalan army used against indigenous communities. In 1993, Noel de Jesús Beteta, an officer in the presidential security forces known as the Presidential General Staff, was tried and convicted to 30 years in prison for carrying out the crime. In September 2002, in a trial that culminated years of efforts to prosecute three high-ranking military officers for their role in orchestrating the crime, the Third Criminal Court concluded that it had been proven that Myrna was assassinated because of her investigations among the displaced population, that Colonel Juan Valencia Osorio gave Beteta the order to kill her, and that the resources of the Presidential General Staff’s Security Department were used to commit the crime.

In that trial, Valencia Osorio was found guilty and convicted to 30 years in prison. Although it was demonstrated in the trial that the other two officers accused, General Edgar Godoy and Colonel Guillermo Oliva, had also participated in the crime as links in the Presidential General Staff’s chain of command, they were not convicted. Helen Mack, Myrna’s sister, who acted as a “querellante adhesiva” or private accuser in the case, appealed the verdict in favor of Godoy and Oliva.

The Fourth Appeals Court’s May 7 verdict has now reaffirmed the power of impunity. The three judges who sit on the Court issued a completely inconsistent verdict in an attempt to officially absolve people of their responsibility for the Guatemalan state’s policy of repression during the country’s internal armed conflict and to spread the cloak of impunity back over crimes committed in response to the National Security Doctrine, the state’s counterinsurgency policy and the concept of “internal enemy.” With the Court’s actions, the country lost yet another opportunity to do justice based on the principles of judicial independence, impartiality, objectivity and respect for the rule of law.

Acquitted without arguments

The verdict issued by the Fourth Appeals Court presented no legal or factual arguments as justification, and is flawed on many grounds. To begin with, it applied improperly founded doctrinaire principles to assess the Presidential General Staff’s involvement in the murder of Myrna Mack, when what had been submitted for its consideration was individual responsibility in the crime of the three officers, Valencia, Godoy and Oliva.

The Appeals Court’s mandate was limited to analyzing whether or not the commission of a crime could be deduced from the facts proven in the trial, specifically, the fact that Valencia gave the order to kill Myrna. The Court was to analyze whether the order issued by Valencia—which he himself and his defense admitted in their appeal—had led to Mack’s death. The Court, however, acting in accord with military interests, did not consider these facts but rather took a different tack to acquit Valencia, thus overturning the guilty verdict issued against him and upholding the verdict of not guilty in the case of the other two officers.

The judges based their decision on an alleged contradiction they claimed to find in the 2002 verdict: it was unclear to
them that the crime was planned in the Presidential General Staff. They therefore resolved, without grounds, that the crime was not planned in the Presidential General Staff, and thus also resolved that Valencia was innocent. The astounding part of this verdict is that the Court acquitted Valencia without denying what the Third Court had determined to be a proven fact: that Valencia ordered Beteta to kill Myrna Mack. In no part of the verdict did the judges provide any evidence of Valencia’s innocence. To acquit him, they based their decision solely on the fact that in their minds, it had not been proven that the assassination was planned in the Presidential General Staff, which even if it were true would not bear on the evidence against Valencia.

A serious precedent: Individual responsibility

Valencia was not the only one absolved. So was the Presidential General Staff, a military structure considered by experts and the REMHI and Historical Clarification Commission reports to be a center where serious crimes were planned and committed. Thus, with a political verdict clearly designed to defend military interests, the Fourth Appeals Court brushed aside all the facts against the Presidential General Staff that had been proven in the courts over the last 13 years.

Perhaps even more troubling was the Court’s decision that if the Presidential General Staff was not proven to have been involved in the crime, its members were not involved either. It thus placed the individual responsibility of Valencia and the other two accused officers beyond any consideration. In acquitting the three men, the judges cited only doctrinaire principles copied straight out of a Penal Law manual, without presenting a single reason to support their verdict. The judges simply did not apply the law.

The precedent is a very serious one. Over the past 13 years, specific people have been tried for their individual responsibility in the case. The September 2002 trial was against individual people, not against the military structure. Nonetheless, in absolving the structure, the Court also dissolved individual responsibilities. This verdict will have ominous repercussions on the administration of justice, as it links individual responsibility to institutional responsibility.

“Deep down, nothing has changed”

With such an obviously biased and unfounded verdict, the Appeals Court struck a hard blow to the hopes for justice in Guatemala. The acquittal of these high-ranking military officers has once again left people with feelings of despair. Yet again it has been confirmed, in a high-profile case, that impunity and denial of justice are the norm in the Guatemalan state’s response to the demand for justice.

On May 28, Helen Mack presented an appeal to the Supreme Court for denial of justice, challenging the Fourth Appeals Court’s verdict on substance and form and requesting that the verdict be overturned and the three officers be convicted as responsible for Myrna’s assassination. That same day, as president of the Myrna Mack Foundation, she participated in an ecumenical event commemorating the anniverasary of the Panzós massacre, at which people discussed the impunity surrounding this and other paradigmatic cases of impunity in Guatemala.

During the event, Helen Mack analyzed the situation of justice in Guatemala. The following is part of her presentation:

“It’s not enough that society has access to reports like the REHMI and Historical Clarification Commission reports. We have to ensure that this historical memory is infused throughout the justice system to ensure that the violent events that have caused so much damage to our social, political and family relations will never be repeated. Deep down, nothing has changed.

“The Historical Clarification Commission reported that during the armed conflict, the judicial structures were inoperative and even aggravated social conflicts because they protected the state’s repressive policies. And I say that nothing substantial has changed because even with the new Constitution, the new penal process, the new institutions and the Peace Accords, this country still lacks the political will to administer justice in accord with the basic principles of legality, judicial independence and the autonomy of the judicial institutions. The judicial bodies remain ineffective and many judicial officials and police officers serve the interests of the powers-that-be.

“Military power continues, as in the past, to exert a strong influence on many in the justice system. It exerts a strange and mysterious seductive power over men and women in key positions in the administration of the state. Some judicial officials are not immune to this, as I myself have witnessed.

“Many of you have experienced this as well, as you and your organizations have been involved in bringing important cases to justice, like the massacres of Panzós, Río Negro and Dos Erres, and the murder of Monsignor Gerardi. The pattern is the same. Cases get stuck in the Public Ministry, which lacks well-defined policies for criminal prosecutions, and where the hidden parallel power structures manipulate the investigations. Although some prosecutors in the Ministry are willing to act, they work alongside other officials who are committed to impunity and they don’t have the autonomy they need to carry out their work.

“The cases that have managed to overcome the barriers of impunity in the Public Ministry stumble when they reach the courts. Some judges and magistrates allow themselves be intimidated, pressured or bribed. No one can deny the pressure, because the Supreme Court itself has denounced the threats and attacks against judicial officials. No one can deny the bribery and corruption, because the Supreme Court itself has denounced the suspected officials. Some magistrates and judges, out of ideological affinity or personal interest, toe the line laid down by political power, military power and the power of organized crime. In their desire to serve illicit powers, they ignore the guarantees of due process and the basic principles of law.”

Paradigmatic cases: The Panzós massacre

During the event, people also recalled five other paradigmatic cases in Guatemala, as an homage to the communities that continue to fight for justice. The first was the massacre in Panzós in which dozens of indigenous Q’eqchi’es were mowed down by army sharpshooters, a crime that marked its 25th anniversary on May 29.

Nearly a hundred Q’eqchi’es peasant farmers had come to Panzós on that day in 1978 to demand a stop to the theft of their land and the mistreatment and exploitation they suffered working on the region’s large farms. The mayor of Panzós had called them there for a meeting, and when they filled the square, they were shot down by members of the army who were waiting for them on the roofs of the city hall and the church. According to a witness, one military officer had said, “If you want land, you can have it in the cemetery!” The shooting continued for five interminable minutes. The panicked indigenous people tried to flee, pursued by bullets, but the army had also closed off the main streets. The Historical Clarification Commission report was able to document the deaths of 53 of the farmers.

In 1997, the widows of many of the people assassinated presented their case to the Public Ministry, but it is still languishing in the files.

Communities wiped off the map

This massacre was not a chance event. It was planned by the municipal authorities, the military and the large landowners, who were all fully identified by name at the time it happened and have been known throughout these 25 years. The Historical Clarification Commission report considered this case “illustrative of the influence of large landowners on the use of the state apparatus to resolve conflicts over land ownership to their benefit, using armed violence against poor peasant farmers and involving the army in the rural issue.” At the time the Panzós massacre occurred, the peasant farmers had been improving their capacity to organize, which had the large landowners worried.

After the massacre, the army stepped up its selective repression against community leaders demanding land, as well as Mayan priests in the Polochic Valley. Between 1978 and 1982, the Historical Clarification Commission counted 310 victims in this region who had either been disappeared or extrajudicially executed by soldiers, military commissioners and civil self-defense patrol members. The bodies of indigenous people were regularly seen floating down the Polochic River.

Whole communities disappeared from the map as thousands of peasant farmers fled to the mountains. The repression terrorized and immobilized the population of Panzós. People stopped petitioning for land, and no public demonstrations were held in the area from 1978 until 1996.

The murder of Father Hermógenes

In the ecumenical event, people also remembered another emblematic case where impunity still prevails: the murder barely a month later, on June 30, 1978, of Father Hermógenes López, as he was returning from visiting a sick parishioner in San José Pinula. Father Hermógenes had distinguished himself for defending the dignity of the poor in his parish and opposing the arbitrary and illegal roundup of young people for the army. He also supported the local peasant farmers in defending their right to water against a plan to divert the rivers, which led him into conflicts with the water company and the region’s large landowners. He was killed the day after publishing an open letter to then-President Romeo Lucas García in which he asked for the dismantling of the Guatemalan army.

The massacres of Dos Erres and Río Negro

Another unpunished crime remembered that day was the Dos Erres massacre. From December 5-8, 1982, during the time of the de facto government of General Efraín Ríos Montt—who has recently announced his candidacy for the November presidential elections—and his “scorched earth policy,” special army troops known as “Kaibiles” invaded the community of Dos Erres in La Libertad, Petén. They interrogated and tortured the people, raped the women and girls, and then massacred everyone and threw their bodies into a well.

In April 2000, after Guatemala’s Association of Families of the Disappeared presented evidence on these events, including the sworn statements of two witnesses, a judge ordered 16 military officers detained. The accused have filed over 30 appeals to date, abusing this resource to try to block the normal course of the trial and wear out the plaintiffs. They demand application of the National Reconciliation Law in their case.

Participants in the ecumenical event also recalled the massacre in Río Negro, a community in Rabinal, Baja Verapaz. In 1982, this community was among those resisting an eviction ordered by General Lucas García’s government to build a hydroelectric dam. On March 13, 1982, 12 army members accompanied by 15 Civil Self-Defense Patrol members entered Río Negro. The army encircled the area and looked on as the patrol members carried out the order to kill everyone in the community. The men had already fled, so after stealing everything they could and raping the women, the patrol members took everyone in the community to the Pacoxom Mountain and executed them. According to the Historical Clarification Commission report, they killed 177 people, including 70 women and 107 children.

On August 23, 1993, four survivors denounced this horrendous crime. In July 1994 three of the responsible patrol members were arrested, and their trial began. The first verdict against them, resulting in the death penalty, was issued in November 1998. But in February 1999, the Appeals Court annulled the verdict and sent the case back for retrial. In the second case, the three patrol members’ guilt was upheld and they were sentenced to 50 years in jail. At that point, the suit was also opened against the 10 other patrol members and Army Captain José Antonio Solares, who commanded the operation and is now a retired colonel. Two other patrol members were arrested on March 3, 2003, and another four on May 14. The police have not yet been able, however, to carry out the order to arrest Solares on charges of murder and genocide.

The Bishop Gerardi case

Monsignor Juan Gerardi was assassinated on the night of April 26, 1998 as he was returning to his parish house, located just two blocks away from the presidential palace. Two days earlier he had presented the report Guatemala, Never Again, with testimonies of the innumerable human rights violations committed during the armed conflict.

In this case, also emblematic, the process has run up against all kinds of obstacles designed to prevent us from finding out the truth, ranging from a campaign to slander Gerardi’s memory to the Public Ministry’s mishandling of the investigation. Seven witnesses have had to go into exile and a judge, two prosecutors and officials from the Public Ministry and the Archbishop’s Human Rights Office have received death threats. The executive branch’s lack of cooperation in the case has been more than obvious.

Five people were arrested in January 2000, accused of participating in the crime: three army officers, a priest and the cook in the parish house. On June 7, 2001, after a three-month public trial, the three military officers were convicted of the crime of extrajudicial execution and sentenced to 30 years in prison. The priest received 20 years for complicity and the cook was found not guilty.

The verdict was appealed and the Fourth Appeals Court decided to annul the whole process and order a retrial, a decision that both the Public Ministry and the Catholic Church appealed to the Supreme Court. The Supreme Court granted their appeal and definitively suspended the decision of the Appeals Court, so heavily criticized for its bias in political cases, as it just revealed again in the Mack case.

On December 19, 2002, after the Supreme Court decision, one of the witnesses in the case was killed. And shortly after that, one of the military officers responsible for Gerardi’s murder, Sargeant Obdulio Villanueva, was killed in a riot in the Pavoncito prison. After that incident, the other two military officers convicted in the case were transferred to the Boquerón prison, in Jutiapa, where they are the sole prisoners. The Supreme Court decision was appealed and the case is now pending resolution in the Constitutional Court, which is moving very slowly on it.

Ineffective and weak justice system, despite some progress

What has happened in the Myrna Mack case, as in these other five paradigmatic cases and many others that have not even managed to reach the courts, reveals the judicial system’s ineffectiveness and weakness. There is new evidence daily. Cases of human rights violations are held up in the Public Ministry or in the early phases of the criminal process. The leaders of organized crime mock justice, as the only ones ever exposed to the state’s punitive power are the weakest links in the criminal chain. Corruption charges go nowhere because state structures protect those who enrich themselves under its wing.

The justice system continues to operate according to the parameters established during the internal armed conflict. Its ineffectiveness aggravates social conflicts and encourages violence among the dissatisfied population, as shown by the continuing cases of lynchings and other demonstrations in which people decide to “take justice into their own hands.”

Despite the progress made in recent years, daily reality continues to show that the structures that encourage impunity and corruption in the judicial branch are still intact; the changes made so far are merely formal, not substantial; and weakness and ineffectiveness remain the system’s most solid and enduring characteristics.

The population’s access to justice is still being denied by a system that refuses to broaden its horizons to encompass indigenous law and alternative methods of conflict resolution. At the same time, the institutional reforms that could provide Guatemalan society with a better public justice system over the medium and long haul remain stalled.

Impunity feeds indignation

The verdict acquitting the defendants in the Myrna Mack case has fueled social indignation over impunity. The one ray of hope in this case can be found in the persistence, tenacity, and capacity to overcome adversity that Myrna’s family and the other people who have brought this case to the point it is now have shown throughout all these years. For this reason, although people have been discouraged by the course of the case, it is not only discouraging; it also shows us a path.

By laying bare the justice system and revealing a part, if only a part, of the horror that thousands of Guatemalan families have suffered from, it encourages action. Helen Mack’s move to appeal the Fourth Appeals Court’s verdict to the Supreme Court, in the hope that it will amend the legal aberration represented by that verdict, is yet another sign of that tenacity.

“We won’t be silent or give in to fear”

Many kinds of actions will clearly be needed to address problems as serious as the ones that this case has highlighted once again. In concluding her statements at the ecumenical event, Helen Mack summed up the convictions that should guide the actions of Guatemalan society as follows:

“The fight for justice must be comprehensive. This case is relevant not only to those who have legal suits pending against military officers, but also to those who have suffered from kidnappings, to a society victimized by drug trafficking and organized crime. It is relevant to society in general, which suffers from the ineffectiveness of the judicial system every day.

“We must be clear about something else: the judicial officials, prosecutors and police are not happy with our demands. It is obvious that they would rather not be exposed to the scrutiny of public opinion. For this reason, when they try to call us to order because they feel that our criticisms affect judicial independence, they don’t frighten us. We, more than they, are solidly in favor of judicial independence and the autonomy of prosecutors. And we will not allow limitations on our right to freely express our opinions. We are using the legal resources established to defend our rights, but we are also free to publicly express our ideas and opinions.

“It must be clear that we do not irrationally want verdicts to our liking. We demand investigations, legal proceedings and verdicts that respond to the basic principles of legality and the independence and autonomy of the responsible institutions. For this reason, we can’t be silent when justice officials act against the principles of the rule of law and legality. If they violate the laws and the Constitution, we must denounce them.”

It is hard to talk of hope

Helen Mack also said, “I believe this is the moment to go further in our efforts. For years, we have given the justice system opportunities to act in accord with the principles of legality and independence. We have denounced the actions of judges, prosecutors or magistrates who act unethically or against the law. Now we must go beyond denunciations. We also have to pursue legal actions against those who twist the country’s judicial order to serve military, political, economic or criminal interests. We have learned what impunity is and how it works. Now it is time to demand that those who facilitate it and deny justice are held criminally responsible.”

“For me, personally, after seeing the acquittal of those who ordered my sister’s assassination, it is hard to speak of hope. But just as you have done, I have to try to get over this and redouble my efforts because the fight hasn’t ended.”

Helen Mack and Carmen Aída Ibarra, from the Myrna Mack Foundation, are envío collaborators.

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