Lessons on Justice from Guatemala
Dear 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 - the very
same Guatemala managed to hold a fair trial in a civilian court
of a high-ranking military officer and bring him to justice!
You yourself, 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 sexenio, we
seem no closer to indicting and prosecuting members of the Mexican
armed forces in civilian courts than we did before the political
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?
And why did a country like Guatemala, which has symbolized for
so long the reign of total military impunity in the face of crimes
against humanity, succeed in convicting a powerful army officer
in a civilian court of law?
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 Jesús 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 - just as in Mexico today - was to try members
of the armed forces within the military justice system, whatever
the crime committed. 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. (Note 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
when committed by military personnel on active duty
or in connection with active duty" (Article 57). (Note
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, opaque system of injustice to survive the political
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 the face of direct requests
for information from Carrillo Prieto's office.
In a detailed report on the obstacles faces by the Special Prosecutor
published in July 2003, Human Rights Watch detailed some of the
instances when the military's failed to provide investigators
with basic information that would assist their work. When, for
example, the Special Prosecutor's Office requested information
about military personnel who were assigned to a military checkpoint
in a town in Guerrero, the army prosecutor (Procurador General
de la Justicia Militar-PGJM) responded in a letter in 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 it 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 had served in and the dates he served there-yet,
still, the PGJM claimed it could find no information on the officer.
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 Dirección 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
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
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
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 or detained and tortured; witnesses -
such as Horacio Zacarías 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.
On this point you can distinguish yourself, President Fox, 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 had endured for almost 14 years, and brought some
sense of 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.
Note: The following documents are in PDF format.
You will need to download and install the free Adobe
Acrobat Reader to view.
Circa January 1986
[General Order of the Guatemalan Armed Forces]
Ministerio de la Defensa Nacional de Guatemala, confidential general
For the Guatemala Documentation Project, the National Security
Archive obtained dozens of these "General Orders" from
the Defense Intelligence Agency under the Freedom of Information
Act. The documents - which record biannual changes within the
Guatemalan armed forces - offer one way to track the military
careers of senior officers, and were therefore sought by the Mack
prosecution team as it built its legal argument against the three
men accused of orchestrating Myrna Mack's assassination: Edgar
Godoy Gaitán, Juan Valencia Osorio and Juan Oliva Carrera.
Although the Guatemalan army refused to turn over such records
on the grounds that they were "classified" (see Document
5, below), among the Archive's declassified documents were a handful
of original General Orders from the Guatemalan Ministry of Defense
that the U.S. defense attaché had simply attached to the
cable he sent to headquarters in Washington. The prosecution was
able to use the documents in its argument that the Guatemalan
government had deliberately withheld information pertinent to
August 12, 1988
[Juan Valencia Osorio]
Department of Defense, biographic report
Example of one of the hundreds of biographic reports on Guatemalan
military officers received by the National Security Archive in
response Freedom of Information Act requests. This snapshot of
Valencia Osorio's career in 1988 includes data on his military
training (including travel to the United States to attend an artillery
course), rank and positions held.
February 16, 1990
Intelligence Directorate (D-2) of the Guatemalan National Defense
Defense Intelligence Agency, secret cable
Given the absence of public information on the structure of the
Guatemalan military, and the army's refusal to provide documents
requested by Mack's lawyers, the legal team was forced to turn
to declassified records produced in the United States. The prosecution
used this document about the Directorate of Intelligence (D-2)
in court to establish the relation between the army's central
intelligence entity and the Presidential General Staff (Estado
Mayor Presidential-EMP). Although Myrna Mack's murderer, Noel
Beteta, belonged to the EMP's clandestine intelligence unit, the
Archivo, at the time of the assassination, military lawyers
insisted in court that the EMP had no intelligence function but
existed solely to protect the lives of the President and his family.
The document lists known personnel assigned to the D-2 in early
1990, provides a profile of the training and background of the
typical intelligence officer and describes the network of "formal
and informal control" exercised by the D-2 over "organizations
capable of feeding the overall intelligence apparat" - including
"the classified files organization (Archivos
GT Army Intelligence unit)."
May 10, 1991
Selective Violence Paralyzes the Left
Department of State, secret cable
This document describes the campaign of selective terror that
killed Myrna Mack and other activists in 1990-91. U.S. Ambassador
to Guatemala Thomas Stroock analyzes the strategy, tactics and
modus operandi behind the wave of attacks, which were perpetrated
by "death squads" organized by government security forces.
According to Stroock's analysis, the "selective violence"
was intended to spread fear among members of leftist organizations
thought by the government to be supportive of the guerrillas.
Based on a variety of sources, Stroock concludes that the attacks
were organized and carried out 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." The ambassador was troubled
that President Serrano "seems ambiguous on the topic, an
ambiguity that fuels the violence," and notes that the administration
may tacitly encourage "efforts physically to eliminate the
left as a remotely potential rival to power."
September 27, 1995
Ministerio de la Defensa Nacional de Guatemala, letter
In a classic example of the kind of stonewalling used for more
than ten years by the Guatemalan armed forces to sabotage the
Mack case, the Guatemalan Ministry of Defense explains in this
letter to one of the Mack family lawyers why information sought
by the prosecution will not be made available. In response to
a request for the daily activities records ("bitácora
diaria de partes") for the D-2 and the Archivo,
for example, the Defense Ministry asserts that the records contain
security information and are classified secret. When the prosecution
requests the Archivo's logbooks recording the entry and
exit of personnel, the military claims that the unit does not
maintain such records. "No documentation and/or file exists"
within the Presidential General Staff concerning either Myrna
Mack Chang or the EMP employee, Noel Beteta - and so on.
The stonewalling jeopardized the ability of the prosecution to
adequately build a case against the three Army officers charged
with orchestrating Myrna Mack's assassination. It also made any
relevant information obtained in the United States under the Freedom
of Information Act all the more valuable. For example, in one
response in this 1995 letter, the Defense Ministry refuses to
turn over "General Orders" requested by the prosecution
on the grounds that they are "classified documents."
The National Security Archive was able to obtain dozens of these
records from the Defense Intelligence Agency, however, including
a handful of original General Orders from the Guatemalan Ministry
of Defense (see Document 1, above).
links relevant to this briefing book
[The text of the Guatemalan Supreme Court's January 20, 2004
decision to uphold the conviction of Colonel Juan Valencia Osorio
is not yet available on line.]
The complete text of the Inter-American Human Rights Court's November
25, 2003 decision on "Mack vs. Guatemala" can be reviewed
The following article by Kate Doyle, "Justice in Guatemala,"
published in The Nation, describes the importance of the
case and the use of United States government documents in the
The Lawyers Committee for Human Rights report on the Mack case,
"Test of Justice," was written by lawyers who attended
the 2002 trial of Valencia Osorio and the two other officers.
It gives an excellent overview of the case, including background
of the events, a brief explanation of the Guatemalan legal system,
a detailed description of the proceedings, and highlights of witness
testimony. Download the entire document (about 100 pages):
For additional information about the case, visit the web page
of the Myrna Mack Foundation: http://www.myrnamack.org.gt
On the performance of Mexico's Special Prosecutor's Office, read
Human Rights Watch's July 2003 assessment, "Justice in Jeopardy,"
in English: http://www.hrw.org/reports/2003/mexico0703/index.htm.
or in Spanish ("Justicia en Peligro"):
Diagnóstico sobre los derechos humanos en México
is a comprehensive 2003 report on human rights in Mexico prepared
through a collaborative effort of the Mexican government and the
United Nations. It contains a section on disappearances during
the Dirty War (2.1.4) and a section on military justice (2.1.7).
For an index to the report see http://www.cinu.org.mx/prensa/especiales/2003/dh_2003/index.htm
or download the entire pdf file (about 225 pages): http://www.cinu.org.mx/prensa/especiales/2003/dh_2003/diagnosticocompleto.pdf.
1. Lawyers Committee for Human Rights, A Test of Justice
in Guatemala: The Myrna Mack Trial (New York, 2003), p. 16;
2. Oficina del Alto Comisionado de las Naciones Unidas para los
Derechos Humanos en México, Diagnóstico sobre
la situation de los derechos humanos en México (Mexico,
2003), Capítulo 2, "Derechos Civiles," section
2.1.7, pp. 35-36; http://www.cinu.org.mx/prensa/especiales/2003/dh_2003/index.htm
3. Human Rights Watch, Justice in Jeopardy: Why Mexico's First
Real Effort to Address Past Abuses Risks Becoming Its Latest Failure
(New York, July 2003), Vol. 15, No. 4 (B); see section on "Limited
Military Cooperation"; http://www.hrw.org/reports/2003/mexico0703/index.htm