On Monday, April 9, defense lawyers filed a recusal motion against Presiding Judge Pablo Xitumul, who is overseeing the Molina Theissen trial before High Risk Tribunal “C.” They claimed that Judge Xitumul’s father had been forcibly disappeared and that the Forensic Anthropology Foundation of Guatemala (FAFG) found his body in 2003 at a military base in Rabinal, Alta Verapaz. The court agreed to hear the arguments of the parties on the motion but ultimately ruled that the defense lawyers failed to demonstrate that there was any connection.

It remains unclear whether Judge Xitumul’s father was forcibly disappeared and whether his remains were found in 2003 as the defense lawyers claim.

Judge’s Father: Victim of Enforced Disappearance?

Jorge Lucas Cerna, son of and lawyer representing Benedicto Lucas García, filed the recusal motion, and asserted that the judge has demonstrated bias in favor of the victims, which violates the due process rights of the defendants. Lucas Cerna stated that the judge’s father, Mateo Xitumul Alvarado, was the victim of enforced disappearance in 1981 and was exhumed by the FAFG from the Rabinal military base in 2003.

Lucas Cerna claimed that Judge Xitumul hates the armed forces and cannot be impartial in this case because of his father’s disappearance. This, he said, explains the way the judge has handled the proceedings, and any verdict emitted with his participation would be an act of revenge for what happened to his father. Lucas Cerna called for the recusal motion to be reviewed by a superior court, for Judge Xitumul to step down from the trial court, and for a new judge to be assigned to take his place. Lucas Cerna presented six images as documentary evidence of his claim.

The lawyers for the other four defendants joined Lucas Cerna in filing the recusal motion. The defendants, who were present in the courtroom, stood in the small holding cell behind their lawyers to hear these arguments.

José Anaya Cardona, defense attorney for Manuel Callejas y Callejas, claimed that, according to information obtained from the online FAFG database, Judge Xitumul’s father was forcibly disappeared on April 1, 1981. The same database states that 74 bodies were exhumed from the former military base of Rabinal in May 2003; among the bodies that were exhumed was the body of Mateo Xitumul Alvarado, but his remains had not yet been identified by the family or through DNA testing. Anaya Cardona said that the judge hates the armed forces because of what happened to his father, and it was possible that he had already “prefabricated” a guilty verdict.

Defense counsel for Letona Linares, stated that this new information made clear that Judge Xitumul favored the victims in this case. At the same time, he pointed out that the present proceedings were confirming a state policy of enforced disappearance in 1981. The defense lawyers also noted that Judge Xitumul was one of the judges in the 2013 genocide case.

Although the defense rested its arguments on information gleaned from the FAFG website, during this trial and previous trials, the defense lawyers have harshly criticized FAFG and its experts.

It appeared that the recusal motion had outside support. As Lucas Cerna was making his arguments, Ricardo Méndez Ruiz, the president of the Foundation Against Terrorism, who has been a major figure challenging efforts to prosecute military officials for human rights violations, appeared in the courtroom. On Twitter, Méndez Ruiz posted a tweet with documents from FAFG listing Mateo Xitumul Alvarado as a victim of enforced disappearance, alongside Judge Xitumul’s birth certificate, where Mateo Xitumul Alvarado is identified as his father.

In another tweet, Méndez Ruiz states that if this information is verified, all the sentences of army veterans who have been convicted for grave human rights violations in which Judge Xitumul was one of the judges “should be annulled.”

International Justice Monitor consulted Fredy Peccerelli of FAFG to verify the information presented in court. He stated he was not at liberty to discuss and that that his office would be able to verify the information once the Attorney General’s Office files a formal request for information.

The Plaintiffs Respond

Erick de León, prosecutor for the Attorney General’s Office, responded to the recusal motion by saying that the evidence presented does not demonstrate hatred toward the defendants in these proceedings. “Criminal prosecution focuses on individual responsibility, not the responsibility of the institution to which the accused belong,” he stated.

De León also noted that he was one of the prosecutors in the 2013 genocide case. He said in those proceedings, the head of military intelligence (G2) José Mauricio Rodríguez was found not guilty, which demonstrates the impartiality of Judge Xitumul.

Alejandro Rodríguez, who represents Emma Molina Theissen, argued that the defense lawyers were acting in bad faith because none of the defendants served in Rabinal, such that it would constitute a conflict of interest. Héctor Reyes, in representation of Emma Theissen de Álvarez, argued that the recusal motion was frivolous and a clear case of malicious litigation, which has been a recurring strategy deployed by defense lawyers in cases involving senior military officials accused of grave human rights violations.

Recusal Denied

After several minutes of deliberation, the trial court rejected the recusal motion. The arguments presented by the defense lawyers were not certain, as Judge Xitumul bore no hatred toward the defendants and that during these proceedings the court has upheld the due process rights of the defendants and have ensured their humane treatment. They further rejected the idea that Judge Xitumul demonstrated favoritism towards the civil parties and the Attorney General’s Office.

The court further stated that its decisions throughout the proceedings in the Molina Theissen case have been based on the law and are not the decision solely of the presiding judge but of the entire trial court. They also noted that the information presented by the defense lawyers had no relation to the defendants in this case. The court rejected the recusal motion, noting that neither the judge, nor his family, have a personal stake in this case.

Witness Testimony Continues

After this decision, the court instructed the Attorney General’s Office to call its next witness. Erick de León called Claudia López David, an expert in international humanitarian law who worked for more than a decade with the International Red Cross and is currently Deputy to the Human Rights Ombudsman, to discuss her expert report, “Grave Violations of International Humanitarian Law in the Case of Marco Antonio and Emma Guadalupe Molina Theissen.”

The witness told the court that because neither Marco Antonio nor Emma were armed combatants, nor were they armed at the time of their detention, the state of Guatemala had the obligation to apply Common Article 3 of the Geneva Conventions. The torture and sexual violence of Emma and the enforced disappearance of Marco Antonio represent grave breaches of the Geneva Conventions and of international humanitarian law, she stated.

The expert explained that in a hierarchical institution such as the army, the superior office holds ultimate responsibility for violations of the law. At the same time, she stated, no official is obliged to perform an act that is illegal, even if it is an order. Based on her interviews with senior military officials, at the time of the crimes, they were unaware of the Geneva Conventions. However, she stated, it is the responsibility of the commanding officers to respect and guarantee the respect of that instrument.

The final witness of the day was protected witness A, who was with Emma after she escaped from Military Zone No. 17. The witness said that Emma was very thin when she saw her and practically unrecognizable.

“This was not the Emma that I knew,” she stated. Emma told her in general terms of the sexual violence she suffered at the hands of the military while she was in detention. Later, she was with Emma for a month, and she learned more about the torture and sexual violation Emma had endured, including electric shocks to the head and eyes, and the deprivation of food and water.

The next hearing took place on Tuesday, April 10.

Jo-Marie Burt is an Associate Professor of Political Science and Latin American Studies at George Mason University. She is also a Senior Fellow at the Washington Office on Latin America (WOLA). Paulo Estrada is a human rights activist, archaeology student at San Carlos University, and civil party in the Military Diary case.