Civil Society, Headlines, Human Rights, Indigenous Rights, Latin America & the Caribbean

RIGHTS-GUATEMALA: Trial on Disappearances Marks a ‘Before’ and ‘After’

Inés Benítez

CHIMALTENANGO, Guatemala, Mar 11 2008 (IPS) - “My husband had taken a cow out to pasture when an army platoon took him away. He was missing for 25 years, until his corpse was exhumed two years ago,” María Magdalena C., an indigenous woman from the village of Choatalum in the central Guatemalan region of Chimaltenango, told IPS.

María Magdalena, a 52-year-old mother of three, is one of around 20 Choatalum villagers attending the first trial ever held in Guatemala on forced disappearance, which opened Monday.

The trial involves the disappearance of six indigenous members of the Kaqchiquel Mayan indigenous group, between 1982 and 1984.

Monday’s public hearing was held against a civilian “military commissioner”, Felipe Cusanero, who is accused of participating in the forced disappearances in complicity with the army, Fabiola García, of the Centre for Legal Action on Human Rights (CALDH), which is providing legal advice to the plaintiffs, told IPS.

“We want to see justice done,” said María Magdalena with tears in her eyes, sitting in the packed courtroom in Chimaltenango, 70 km northwest of the capital.

In 1996, a peace agreement put an end to 36 years of armed conflict between the Guatemalan National Revolutionary Unity (URNG) and state security forces, which claimed 200,000 (mainly indigenous) lives.

A United Nations-sponsored truth commission held the army responsible for over 90 percent of the killings, which included 45,000 forced disappearances and the wholesale destruction of hundreds of rural Mayan villages as part of the army’s scorched earth campaign in the early 1980s.

During the war, the army trained and armed “civil defence patrols”, which served as civilian adjuncts to the military. Cusanero collaborated with the army as “military commissioner”, a post created to recruit local civilians to form part of the civil defence patrols and provide information and intelligence on other villagers.

The prosecution of Cusanero, who is free on bail and chose not to testify, began in 2003 when six villagers filed a legal complaint before the public prosecutor’s office.

According to the complaint, the six missing people, four men and two women, were illegally detained in the village between September 1982 and October 1984 by Cusanero – who was accompanied on some of the occasions by military personnel and members of the civil defence patrol – and never heard from again.

When the families asked for information about their missing loved ones at the military detachment in Choatalum, Cusanero refused to tell them anything and threatened them, to force them to stop trying to find out, according to CALDH.

“My 24-year-old son was taken away by Felipe Cusanero and 30 soldiers at 11:00 one night. He was taken to the military detachment,” plaintiff Hilarión López testified Monday.

When López asked about his son, the soldiers responded that “the work was done,” and told him to stop asking around because otherwise he “would get it too.”

In the hearing, Cusanero’s defence attorney, Angel Smith, argued that his client cannot be tried because the crime of “forced disappearance” has only been on the books in Guatemala since 1996.

He said the trial thus violates the principle of retroactivity, and that no one can be tried for things that were not considered a crime at the time they were committed.

But according to Guatemala’s Law on National Reconciliation, no statute of limitations applies to the crimes of genocide, torture or forced disappearance.

The public prosecutor’s office and the lawyers for the plaintiffs agreed that forced disappearance is an ongoing crime until the victim is found, dead or alive.

“The day before my husband disappeared, they took 22 people away, and only 12 (bodies) have been exhumed, we don’t know about the rest. The families are sad that they cannot find their relatives because no one will tell us” where they are, said María Magdalena during a break in the trial.

The case, in which Guatemala’s Association of Families of the Detained-Disappeared is also a plaintiff, was delayed by appeals and legal maneuvering by Cusanero’s defence lawyers until it made it to the Constitutional Court, which gave it the go-ahead.

“This trial has really given new hope to many people. It involves the right of justice of all victims (of the civil war), and will mark a before and after,” García told IPS.

Choatalum, a Kaqchiquel Mayan farming village, is in one of the regions hardest-hit by the civil war in terms of human rights violations, according to the truth commission – formally known as the Guatemalan Commission for Historical Clarification (CEH) – report published in 1999.

CALDH director Mario Minerva told journalists Monday that he hoped the court would find Cusanero guilty, since forced disappearance “is an ongoing crime to which no statute of limitations applies.”

Chimaltenango prosecutor Albert Clinton did not reveal the sentence being sought for Cusanero, which could range between 25 and 40 years in prison, or could even be the death penalty.

Clinton said the trial could involve five or six more hearings, to allow all of the experts, as well as at least six witnesses, to testify.

CALDH activist García said the relatives of the victims who are taking part in the trial as plaintiffs or victims, and especially the women, “are scared because Cusanero is free, living in the village, where he is powerful.”

The families believe the remains of their missing loved ones might be buried in the military detachment in Chimaltenango.

But Hilarión López, who has attended three exhumations, said Monday that he knew that Cusanero had removed the remains from the army barracks and moved them elsewhere.

The Forensic Anthropology Foundation of Guatemala, which has analysed the remains of a number of people in Choatalum, presented the results of their investigation at the hearing.