Over the course of two hearings in August, the Guatemalan Attorney General’s Office presented additional charges against the four high-ranking military officials who were arrested on January 6, 2016, for the illegal capture, detention, and torture of Emma Guadalupe Molina Theissen and for the enforced disappearance of her 14-year-old brother, Marco Antonio Molina Theissen. In addition, they brought charges against a new defendant: retired army general Benedicto Lucas García.

Lucas García is the brother of former dictator Romeo Lucas García and was head of the High Command of the Guatemalan Army (Estado Mayor del Ejército) between August 15, 1981 and March 22, 1982. He is currently being prosecuted, along with seven other military officers, in the CREOMPAZ case and has been in pretrial detention since his arrest, also on January 6, 2016.

The original four defendants in the case are retired military officials Hugo Ramiro Zaldaña Rojas, Edilberto Letona Linares, Francisco Luis Gordillo Martínez, and Manuel Antonio Callejas y Callejas. The new charges against them focus on the sexual violation and aggravated sexual assault of Emma Guadalupe Molina Theissen during the time of her illegal detention at the Military Zone 17 (MZ17) in Quetzaltenango. The charges against Lucas García emphasize his role as the person in charge of designing the military’s counterinsurgency strategy, which included, as part of its strategy to combat guerrilla activity, arbitrary detention, enforced disappearance, torture, and sexual violence especially against female detainees. In addition to Lucas García, Callejas y Callejas is being prosecuted as an alleged intellectual author of these crimes.

As previously reported, the first attempt to hear the new charges on August 12 was delayed because the Prosecutor General’s Office (PGN) only recently joined as a third party to the case and did not have access to the case file. The PGN acts in representation of the interests of the state of Guatemala and is a separate institution from the Attorney General’s Office. The charges were heard in two subsequent hearings held on August 22 and 29 before High Risk Tribunal “C,” with Judge Víctor Hugo Herrera Ríos presiding. Lucas García began his initial statement in response to the charges against him but did not conclude. He was scheduled to continue his presentation on September 2, but the hearing was postponed. A new hearing is scheduled for September 16.

In this intermediate phase of the proceedings, the court will determine whether the Molina Theissen case should proceed to trial. On April 26, 2004, the Guatemalan state recognized its responsibility in the enforced disappearance of Marco Antonio Molina Theissen before the Inter-American Court for Human Rights. The court found the Guatemalan state culpable and ordered it to investigate, prosecute, and punish those responsible. It also ordered the state to search for the remains of the victim, but to date Marco Antonio remains missing.

Additional charges for sexual violence and aggravated sexual assault

The August 22 hearing began with defense counsel for Lucas García, Lucas Cerna, calling upon the court to suspend the proceedings, claiming procedural irregularities. The discussion centered on whether the court that was originally hearing the case, the Fifth Criminal Court, had acted improperly by summoning Lucas García as a defendant in the case on June 22, when the case had been transferred to the High Risk Tribunal on June 16. The judge rejected the motion, stating that the procedural error had been corrected when the High Risk Tribunal summoned Lucas García on August 12 and formally notified him of the charges pending against him.

Public prosecutor Erick de León proceeded to present the new charges against the four military officers who were arrested in relation to the Molina Theissen case in January 2016, then outlined the charges against Lucas García. He stated that the events under review — the illegal detention, torture, and sexual violation of Emma Guadalupe Molina Theissen and the enforced disappearance of her brother Marco Antonio Molina Theissen from their family home — took place between September 26 and October 6, 1981. During this time, the Guatemalan army was implementing a counterinsurgency strategy based on the Doctrine of National Security.

Emma Guadalupe, a militant of the Patriotic Worker Youth (Juventud Patriótica del Trabajo), was considered by the army to be an “internal enemy” — a key concept of the Doctrine of National Security — and as someone who had information of value to military intelligence. She was illegally detained at a military check-point and brought to MZ17, where she was interrogated and subjected to torture. In addition, de León noted Emma Guadalupe’s gender, and the fact that she was being illegally detained by heavily armed members of the Guatemalan army, rendered her vulnerable to sexual assault. As a result, the Attorney’s General’s Office was charging the original four defendants with aggravated sexual assault. He presented each new charge individually, according to the chain of command.

The four officers were charged for their role in knowingly permitting soldiers under the influence of alcohol to enter the room where Emma Gaudalupe was being detained and shackled, where they used physical and psychological violence to sexually violate her outside of interrogation sessions. They are also charged with permitting soldiers to use physical and psychological violence to sexually violate her during interrogation sessions. The charges varied based on the hierarchy and functional responsibilities of each defendant.

According to the Attorney General’s Office, Hugo Ramiro Zaldaña Rojas, a major and then-lieutenant colonel in the Guatemalan army and former intelligence official (S-2) of MZ17 between July 1, 1981 and March 31, 1982, had direct control over Emma Guadalupe during the period of her detention at MZ17. He is charged with having directed, supervised, and controlled her interrogation, and of therefore being criminally responsible for the crimes committed against her.

Edilberto Letona Linares, a colonel in the Guatemalan army, was Deputy Commander of MZ17 between January 1 and October 31, 1981, and was functionally responsible for all actions at the military base when the Commander, Francisco Luis Gordillo Martínez, was absent. He therefore faces additional charges for failing to take the necessary actions to stop the crimes against Emma Guadalupe and to punish the officers involved.

Francisco Luis Gordillo Martínez, an infantry colonel, was commander of the MZ17 between December 1 and 31, 1981. According to the Attorney General’s Office, military doctrine and guidelines establish that the commander is responsible for every action carried out or omitted by those under his command. Based on his functional duties as commander, the Attorney General’s Office charges Gordillo Martínez with failing to act to stop the crimes against Emma Guadalupe and to punish the officers involved and with omitting his duty as guarantor as established by Guatemalan law.

An infantry colonel, Manuel Antonio Callejas y Callejas, was former director of intelligence (G-2) of the High Command of the Guatemalan Army between July 1, 1978 and March 22, 1982. As such, he helped to implement the counterinsurgency strategy developed by the Guatemalan army during the internal armed conflict. As part of his functional duties, he advised the chief of the High Command of the Guatemalan Army —who, at the time of Emma Guadalupe’s detention at MZ17 was Benedicto Lucas García — in its mission to obtain information of strategic operational value. Accordingly, he contributed to the planning of military operations in different military commands throughout the country, among them the MZ17.

These plans allegedly resulted in the arbitrary arrest of non-combatant civilians, who were detained in clandestine detention centers within military facilities. According to the charges, detainees were questioned by members of the intelligence service and were often subjected to physical and psychological torture. Female detainees were allegedly subject to individual and collective sexual violence. The charges also allege that the military sought to pressure Emma Guadalupe into becoming a collaborator and informant — a common practice during this time — but she refused and managed to escape on October 5, 1981. The Attorney General’s Office charges Callejas y Callejas, as director of military intelligence, with permitting the existence of clandestine detention centers within some military zones, where detainees were interrogated using torture, cruel, inhuman, and degrading treatment, as well as sexual violence primarily against women. He is also charged with not taking the necessary actions to stop grave violations against non-combatant civilians.

New charges against Benedicto Lucas García

The Attorney General’s Office next presented charges against Lucas García. As the Brigadier General and head of the High Command of the Guatemalan Army between August 16, 1978 and March 22, 1982, he directed, coordinated, and oversaw the work of the High Command and was in charge of the design and conduct of military strategy in the counterinsurgency war. Lucas García was charged with crimes against humanity and aggravated sexual violation perpetrated against Emma Guadalupe Molina Theissen on the basis of the following:

• He ordered the continuous implementation of military plans and directives by the commanders of the military zones and bases, including MZ17;
• He supervised and controlled the implementation of counterinsurgency operations throughout the national territory, including the MZ17;
• He permitted military officers under his command to develop counterinsurgency operations that resulted in the illegal arrest and clandestine detention of individuals in military bases and zones, who were then subjected to physical and psychological torture, and, in the case of women, to sexual violence, as was the case with Emma Guadalupe; and
• These actions and omissions created the conditions for the institutionalization of systematic and widespread violations of human rights and international humanitarian law referred to above.

With regard to the enforced disappearance of Marco Antonio Molina Theissen, Lucas García was charged with the following alleged crimes:

• He knew about and permitted military officials, under the command of the former director of intelligence (G-2) of the High Command of the Guatemalan Army, Callejas y Callejas, to conduct a military intelligence operation to recapture Emma Guadalupe Molina Theissen after her escape from MZ17 on October 5, 1981;
• During the operation, carried out the next day, three members of the MZ17, under the command of intelligence officer “S2” Zaldaña Rojas and under the supervision of Callejas y Callejas, did not find Emma Guadalupe, instead abducting the minor Marco Antonio Molina Theissen;
• As head of the High Command, Lucas García failed to take action to investigate the enforced disappearance of Marco Antonio in order to identify and punish the perpetrators; and
• He failed in his duty as guarantor of human rights under Guatemalan law, with violating and infringing upon humanitarian law as set forth in the Geneva Conventions and violating and infringing upon the American Convention on Human Rights.

Amnesty

After nearly six hours, the judge ordered the August 22 hearing suspended and called for its continuation on August 29. That hearing began with Lucas Cerna, counsel for Lucas García, calling for the application of amnesty provisions to his client for the crime of sexual violation. He argued that sexual violation is a common crime and is not excluded from the amnesty provisions outlined in the Law of National Reconciliation.

The plaintiffs vigorously rejected this argument. They stated that the Law of National Reconciliation does not provide amnesty for the crime of sexual violation. Moreover, they stated, there is no statute of limitations for the crime of sexual violation when it occurs in the context of systematic and widespread offenses that amount to crimes against humanity. The tribunal denied the defendant’s petition, arguing that Guatemala is signatory to international treaties that determine that sexual violence is not subject to amnesty.

Unexplained restrictions and limitations on press freedom

During the hearing on August 29, judiciary police restricted public access to the courtroom. The police said that only two relatives for the accused and the victims, as well two per human rights organizations, would be allowed to enter the courtroom. In fact 16 individuals on the side of the accused were allowed in and 12 for the plaintiffs. Several observers, including human rights activists, students, and researchers, were not allowed into the courtroom.

The press was allowed into the courtroom, but intimidation of journalists, which was evident in prior hearings, continued. A relative of one of the defendants took pictures of the human rights activists and members of the independent press, which later appeared on the Facebook page of “Relatives and Friends of Military Families” (Familiares y Amigos de Militares – Families), along with insults and intimidating language. They specifically targeted two well-known human rights defenders, Miguel Mörth, a lawyer with the Bufete de Derechos Humanos, and Edda Gaviola, who works with the Unit for the Protection of Human Rights Defenders in Guatemala (UDEFEGUA).

In another incident, the judiciary police ordered well-known journalist and human rights activist Iduvina Hernández to evacuate the courtroom. She was shown a photocopy of a judicial order supposedly restricting her physical proximity to the daughter of one of the defendants, Zaldaña Rojas. Hernández stated that she had never received notification of this restriction and doubted its authenticity. Moreover, it said nothing about her access to the courtroom. Nevertheless, she was not allowed back into the courtroom, raising serious questions about press freedom in the context of these proceedings.

Lucas García began his statement in response to the charges against him, but the judge adjourned the proceedings until September 2. That hearing was suspended for scheduling reasons, and a new hearing was scheduled for September 16. At that time Lucas García is scheduled to finish his initial declaration. The court will then have to determine whether there is sufficient evidence for the case to go to trial.

Jo-Marie Burt is an associate professor of political science and director of Latin American Studies at George Mason University. She is also a Senior Fellow at the Washington Office on Latin America (WOLA). This report was prepared with the assistance of Paulo Estrada, human rights activist, archaeology student at San Carlos University, and civil party in the Military Diary case.