WOLA: Advocacy for Human Rights in the Americas

WOLA/Sergio Ortiz Borbolla

16 Sep 2022 | Commentary

Dr. Jo-Marie Burt: ‘The Indigenous Women of Guatemala had the Courage to Break the Silence’

When 15 Maya Q’eqchi’ indigenous women became the first to win a case against former military officials in 2016, they made history. The officials were found guilty of systematically raping them and subjecting them to sexual and domestic slavery for several years in the Sepur Zarco military detachment during Guatemala’s internal armed conflict in the early 1980s. It was the first time that a Guatemalan court found that systematic rape was used by the Guatemalan military as a weapon of war.

Nearly six years later, in January 2022, five Maya Achi indigenous women secured the conviction of five former paramilitaries for the sexual violence they committed in the municipality Rabinal, also in the early 1980s.

Dr. Jo-Marie Burt, a Senior Fellow at WOLA and an expert on transitional justice who investigated the cases for years and was present at the trials, says that while the convictions marked a historic achievement for human rights in Guatemala and beyond, the women of Rabinal and Sepur Zarco are still awaiting for all the perpetrators, including the intellectual authors, to face the courts, and for reparations to be fully implemented.

We spoke with her about the historic importance of the trials, the impact they had on Guatemala’s Judiciary and the crisis the country currently faces when it comes to punishing human rights violations and corruption.

1. WOLA: The conviction of military officials for the sexual violence against the Maya Q’eqchi’ and Maya Achi women has been described as a landmark moment for justice, why is that?

Dr. Jo-Marie Burt (JMB): Well, these are landmark cases for a couple of reasons. First of all, it is extremely rare for domestic courts to prosecute grave violations of human rights. Scholars have spoken about a “justice cascade,” but the focus has been the international tribunals such as the ones for the former Yugoslavia and Rwanda, and the International Criminal Court, which was created in the early 2000s. Domestic prosecutions of serious human rights abuses are rare, and they have received surprisingly little attention.

So, for a place like Guatemala, where impunity has been the norm, to investigate, accuse, bring to trial and actually convict members of the armed forces and allied paramilitary groups, it is absolutely ground-breaking. In this respect, Latin America is a leader in the world, with countries like Argentina, Chile, Peru and Guatemala, pursuing domestic prosecutions of human rights violations, even while other countries in the region, such as Brazil and El Salvador, have not convicted a single person for human rights atrocities.

Another reason these are landmark trials is that justice for sexual violence is extremely rare and for wartime sexual violence even more so. There tends to be a view that these are just things that happen in wartime; “boys will be boys”, “collateral damage”, and so on. And in general, it is difficult for women survivors to speak about them publicly because there is so much shame and stigma attached to them. So, the fact that prosecutors investigated these cases and judges heard, and believed, the women survivors, and handed down convictions in the Sepur Zarco and Maya Achi cases, is truly groundbreaking.

In addition, the women survivors who brought these cases are indigenous women, the most historically marginalized population in Guatemala. The Q’eqchi’ and Achi women broke the silence surrounding wartime sexual violence in Guatemala. The fact that their voices were heard, not only by the courts but by society at large, is historic.

2. WOLA: In many ways, it forced Guatemala to take a hard look at its past…

JMB: Yes. The Maya Achi case trial took place in the midst of the pandemic, so public participation at the hearings was very limited due to public health restrictions, but in the Sepur Zarco trial, which took place in early 2016, participation was remarkable.

The trial was held in the auditorium of the Supreme Court of Justice, the same room where the genocide trial against dictator Efraín Ríos Montt had taken place in 2013. I think the auditorium has capacity for more than 500 people, and it was filled almost every single day. Women from other regions who had also been affected by sexual violence were there, young people who had never learned about the war and were curious about it were there. In Guatemala, the atrocities committed by the army are not talked about, much less taught in school. The army still denies any responsibility for wartime atrocities.

The fact that there are now sentences finding that the army engaged in systematic sexual violence against women as party of their war strategy — this is now a “juridical truth” that contributes to a fundamental reunderstanding of Guatemala’s recent past.

3. WOLA: The women now talk about what an ordeal the process was, despite the fact that some of them found some justice in the end …

JMB: Absolutely. The stigma and the shame attached to sexual violence is huge, even more so in indigenous rural communities. For the Q’eqchi’ and Achi women to come forward, to agree to speak with prosecutors, to say: “Yes. I will tell you my name. I will tell you exactly what happened to me. I will tell you who did this to me,” and do so in front of their families, their communities, and the entire country, is really incredible. It was incredibly courageous of them to do this.

That said, it is important to acknowledge that justice alone does not meet all the victims’ needs. I’ve spoken with many survivors in Guatemala and elsewhere about how these traumatic experiences continue to impact their lives. Many continue to experience trauma many years later. Many of them suffer physical ailments because of the brutality with which they were treated and because oftentimes the mistreatment lasted weeks, months, and sometimes even years.

Survivors need integral reparations: this includes access to health care, education, monetary reparations, support to rebuild their communities. But this is difficult to achieve in practice. The Guatemalan government has implemented some reparations, but overall it has largely failed to fulfill the promise of the peace accords to provide integral reparations to victims of the armed conflict.

4. WOLA: How did you get involved in researching these cases?

JMB: For years, my research has focused on Peru. I did research on the Shining Path and the conflict that engulfed Peru in the 1980s and 1990s, and on the authoritarian regime of Alberto Fujimori. In the mid-2000s I started a new research project  on the overturning of amnesty laws and efforts to prosecute human rights violations in Argentina and Chile. But, when Fujimori was extradited to Peru in 2007 and was going to be prosecuted in Peru for human rights violations and corruption, I knew I had to focus on this historic trial. That’s when I started collaborating with WOLA, as an observer and analyst for the Fujimori trial.

After Fujimori was convicted, I started to monitor other human rights trials in Peru. A while later, I had an opportunity to share my experience as a trial monitor with human rights defenders in Guatemala and I became part of a team at the Open Society Justice Initiative (OSJI) that developed a project to monitor the Rios Montt genocide trial. It was absolutely electrifying to see and participate as an observer to those proceedings. When the Sepur Zarco trial opened, I started to work again with OSJI to monitor trials in Guatemala. Over time, my researcher partner, Paulo Estrada, and I developed  Verdad y Justicia en Guatemala, and we continue to monitor war crimes trials to this day.

5. WOLA: The genocide trial must have been a very powerful experience…

JMB: It was very surreal in a way. Because impunity in Guatemala had been so strong, so solid. Very few people imagined that the victims of the Ixil genocide would ever sit in a courtroom face-to-face with Rios Montt.

The survivors and relatives of victims that I’ve spoken with have almost always talked about these experiences as being incredibly empowering precisely because that power differential between perpetrators and victims is what sustains impunity. But when the perpetrator and the victims are face to face in the courtroom, there is a levelling that happens. You are all just citizens, subject to the law. This levelling generates a feeling of empowerment and hope on the part of victims that they can actually obtain justice.

Of course, in practice, the powerful have other tools at their disposal, as was the case of Ríos Montt, who was able to apply pressure so to have his conviction overturned.

6. WOLA: How would you describe the role of Guatemala’s judiciary in these convictions?

MB: For years Guatemalans had no faith in the judiciary, which was really just a tool of the powerful to maintain the status quo. But in the late 2000s, things began to change, slowly, thanks both to the role of reformers in the legal system – people like Claudia Paz y Paz, a trail-blazing Attorney General who used the power of her office to address historic injustices and prosecute war-time atrocities – and to international support, especially the UN-sponsored Commission against Impunity in Guatemala (CICIG), which helped strengthen prosecutorial autonomy and judicial independence that was crucial for these trials. This helped build social trust in the Guatemalan legal system, which was crucial for building the rule of law and combating impunity for past and present crimes. The genocide trial was especially important, I think, in giving indigenous communities a sense that they could access the justice system to address historic wrongs.

7. WOLA: Things seems to be changing, however, with the judiciary in Guatemala suffering from a lot of criticism to its integrity…

JMB: Yes. The trust that people had started to feel in the public ministry and in the judiciary a few years ago has now been nearly fully erased. In recent years, corrupt actors have conspired to co-opt the Guatemalan justice system. Those who investigated and prosecuted corruption have been forced into exile, while the justice system is now being used to persecute independent prosecutors, journalists, and human rights defenders. Victims of wartime atrocities are still trying to bring their cases to court because they want justice, but their faith in the system has been dramatically affected by the actions of conservative and pro-military sectors who have sought to dismantle the anti-impunity and anti-corruption efforts in Guatemala.

It isn’t only that these bad-faith actors have removed independent prosecutors and justices; they are-also using the legal system to protect the powerful and the corrupt and to punish those who were investigating and prosecuting them. The few independent judges prosecutors that are still working in Guatemala are having a really tough time, they are under threat, facing attacks and intimidation, some have already lost their jobs, a few are even in prison on trumped-up charges.

8. WOLA: Is Guatemala going backwards when it comes to delivering justice?

JMB: That’s exactly right. If we’re talking about wartime atrocity cases, from around 2008 forward, you begin to see the Attorney General’s office making headway on cases. Especially after Claudia Paz y Paz is named Attorney General in 2010, she took on these cases with new vigor, culminating in the 2013 genocide case against Ríos Montt, the first time a head of state is prosecuted for genocide by a domestic court. Other important cases also came to trial in the following years: the Spanish Embassy massacre, the Sepur Zarco sexual violence case, the Molina Theissen case, involving the illegal detention, torture and sexual violence of Emma Molina Theissen and the disappearance of her 14-year-old brother, Marco Antonio. But you also begin to see a backlash, with pro-military and elite sectors working in tandem to try to impose a new amnesty law, criminalize human rights defenders, and attacking these prosecutions as the efforts of guerrillas.

In 2016, Jimmy Morales comes to power. He promises to combat corruption, but in fact, he is the candidate of the military old guard and the elite who want to see an end to CICIG, and end to trials for corruption, an end to human rights prosecutions. Morales unilaterally ended the CICIG in Guatemala, which gave these corrupt actors cover to pursue their agenda of restoring their power and punishing those who were engaged in anti-corruption and anti-impunity efforts. The CCICIG did do a lot in the 12 years it was in Guatemala, but more time was needed to consolidate the gains it had made and to help generate the reforms needed to sustain those changes. Three years laters since the CICIG was shuttered, corrupt actors have taken over the justice system and subverted it for their purposes. There are still independent prosecutors and judges who are just trying to do their job, but they are under increasing threat.

9. WOLA: This must really contribute to the many challenges the communities face, right? What would you say are the most concerning issues these communities are facing now, despite having secured some level of justice?

JMB: Well, the fact that now it is widely accepted that rape was used as a weapon of war in the civil war in Guatemala is one big achievement. In such contexts, sexual violence is aimed at destroying the individual bodies of the victims, but also the  broader community. When you attack a woman, you are sending a message to the whole community that no one is safe. It also destroys the social fabric of the community as women feel stigmatized, ashamed, isolated. Making it absolutely clear that sexual violence is a crime against humanity is crucial. In many ways, the trials have helped communities to acknowledge these atrocities and to rebuild trust and solidarity.

But Guatemala still has a huge debt with these women, a debt with the Achi women whose cases have not yet come to court, for example – out of the 36 women who brought the cases, only five of them saw their perpetrators convicted in the trial earlier this year. Another issue pending is the full implementation of integral reparations that the courts have ordered in both cases. Some have been implemented but many have not, and several years have passed on the Sepur Zarco case.

10. WOLA: How would you describe the role the US has played, and plays in Guatemala?

JMB: Well, the United States has played a huge role in Guatemalan history, from its support for oligarchic dictatorships in the 19th and early 20th centuries, to the CIA-led coup in 1954, which ushered decades of very brutal military governments, which were also supported by successive U.S. governments, despite knowledge of the massive atrocities they were committing.

That said, more recently the U.S. became one of the main supporters of anti-impunity and anti-corruption efforts in Guatemala. Along with several European governments the U.S. provided a lot of support to the CICIG, for example, and that was a bipartisan effort. But the election of Donald Trump in 2016 and the rise of polarization in the U.S. coincided with the election of Jimmy Morales in Guatemala. Morales, who was backed by the military and the oligarchy who wanted to get rid of the CICIG, cut a deal with the Trump administration, which was only interested in immigration, and that was the end of the CICIG.

Early on, the Biden administration expressed its intention to address the root causes of migration, including grand corruption. But in reality, their actions have not meet their words. They have done some important things, such as putting corruption officials such as Attorney General Consuelo Porras on the Engels list (which sanctions corrupt and nondemocratic actors), but they are failing to grasp the way the system as a whole, from the President Alejandro Giammattei on down, is operating to undo the rule of law, favor corrupt actors, and persecute independent judges, prosecutors, journalists, community leaders, and human rights defenders. There should be harsher sanctions against the Giammattei government and business leaders who collude with corrupt actors and who are using the law to attack their perceived “enemies.” This is lawfare at its worst.

11. WOLA: What’s your hope for the future?

JMB: In the current context, I don’t expect to see much headway when it comes to justice. Because we currently see that the country is now run by a group of pro-military and pro-elite factions whose main interest is rolling back all the gains that we’ve seen over the past few years in anti-corruption and anti-impunity efforts, while restoring the power of the military and the oligarchy and making sure that their power and their privilege is never touched. There are virtually no institutional sources of resistance to their power. Even freedom of the press is under grave attack, as the arrest and indictment of José Rubén Zamora, publisher of El Periódico, revealed to the world.

That’s where we are in Guatemala right now. There are still transitional justice cases ongoing, but increasingly it’s difficult for judges and prosecutors to move these cases forward. We are already seeing human rights cases, such as the Military Diary case, being stalled as a result of these bad-faith actors. The party led by Ríos Montt’s daughter, Zury Ríos, is pushing for a new amnesty law which could see military, including those convicted on the Sepur Zarco and Maya Achi cases, walk free.

It’s pretty astonishing to see how they have succeeded in rolling back so many things so fast.

But it is important to remember the human rights activists, the women survivors, the families of the vicitms, their strength, their resilience, their determination to seek justice: that gives me hope. As international human rights defenders, we need to shine a light on them and their struggles, and call upon our government officials and international bodies to support them and their demands for truth, justice and reparation.