Prosecutor Without Borders

Presiding Judge Yasmín Barrios of the Guatemalan Tribunal for High Risk Crimes raised the gavel above her head and brought it down with such force that observers in the high-ceilinged courtroom jumped in their seats. Against all odds last May, she brought to a conclusion the world's first domestic genocide prosecution against a former head of state.

It would be seven more hours before Barrios would deliver the verdict of a three-judge panel. I waited inside the Guatemala City courthouse, and noticed that many of the Ixil Maya in the audience also did not budge.

The accused, Gen. José Efraín Ríos Montt, had ruled the country for 17 months from 1982 to 1983, during the peak of a counterinsurgency campaign directed at the Maya and the leftist guerrillas they were suspected of supporting. A U.N.-sponsored truth commission found that 626 Ixil villages in northern Guatemala were systematically attacked, and most of the population fled to the mountains. An estimated 200,000 people were killed or "disappeared" during a three-decade conflict that ended with the Oslo Peace Accords in 1996.

Traditionally, the Guatemalan military and the country's elites have relied on their status to provide impunity for such crimes. Prosecutors initially had indicted Ríos Montt for war crimes in 1999 but the case stalled. In 2010, however, newly appointed Attorney General Claudia Paz y Paz revived the investigation. The country had established a Tribunal for High Risk Crimes, with the resources and security to challenge even former government officials. In 2012 Paz y Paz indicted Ríos Montt and Gen. Mauricio Rodriguez Sanchez, his former military intelligence director, on charges of torture, genocide, forced disappearances, state terrorism, and crimes against humanity. (No. C-01076-2011-00015 OF. 2°, Tribunal Primero de Sentencia Penal, Narcoactividad y Delitos Contra el Ambiente.)

The genocide charge focused specifically on the deaths of 1,771 Ixil Maya in the remote highlands during Ríos Montt's term in office. Witnesses for the prosecution described scenes of torture and systematic rape, the slaughter of children, and the evisceration of pregnant women.

During a ten-week trial that began in March, Ríos Montt appeared unfazed by the charges. He spoke only once, declaring his innocence and denying that he could have exercised operational control of his troops during the counterinsurgency campaign.

Now with a verdict due at any time, I didn't stray far from my seat. After reporting from Central America for 25 years, I was unwilling to risk missing a transcendent moment in Guatemala's history. Beginning in 1954, when U.S.-backed forces toppled a democratically elected government and replaced it with a series of military chiefs, Guatemala has struggled to re-establish the rule of law. The successful completion of the Ríos Montt prosecution - regardless of its outcome - marked a giant step for the nation's judiciary. As we waited in the courtroom, an earthquake temblor rolled through - auspicious to some, but so common in Guatemala City that most people hardly took notice.

That same morning, Almudena Bernabeu, technical advisor to the Guatemalan prosecution, had just returned to her home in San Francisco. Director of the transitional justice program at San Francisco's Center for Justice and Accountability (CJA), Bernabeu is lead counsel to the Spanish National Court's Ríos Montt investigation, also begun in 1999. (Juzgado Central de Instrucción Número 1 Diligencias Previas 331/99.10.)

Now, as she began work communicating online with CJA colleagues in a half-dozen countries, her distance from the courtroom was driving her crazy. "Don't worry, Almu," one of the prosecutors messaged her from Guatemala City. "We know you have our back."

When Paz y Paz took office, Bernabeu's team in Madrid turned over its accumulation of evidence to Guatemalan prosecutors. Both nations have civil law systems, where the court conducts criminal investigations. After Paz y Paz's indictment of Ríos Montt, Bernabeu shifted her efforts to Guatemala City, where the CJA collaborated with prosecutors and two local organizations representing the Maya victims.

As the three judges re-entered the tribunal chamber in late afternoon, the air was electric. Ríos Montt, fit and still authoritative at age 86, exuded confidence as he sat among his defense lawyers. Observers filled all 500 seats, standing pressed against the walls and three-deep on stair landings.

For 45 minutes Judge Barrios read from the decision, her voice at first tremulous and then strong and clear as she reached the Ríos Montt verdict. Genocide: Guilty, 50 years. Crimes against humanity: Guilty, 30 years. (Rodriguez, the intelligence chief, was acquitted of all charges.)

The courtroom erupted into chaos. As reporters pushed forward, the defense table broke to the ground with a resounding crash. Security guards couldn't - or wouldn't - respond to Barrios's repeated orders to seize the defendant. Finally the judge called for armed reinforcements to prevent "the risk of escape." Then in a moment of inspiration, someone began singing a hymn. Others joined in, and the spreading song dissipated the fierce energy gripping the room. Police eventually arrived to take the general to jail, but it took nearly an hour to regain order.

Learning of the verdict in San Francisco, Bernabeu said she felt overwhelmed by memories from the 14-year effort to prosecute Ríos Montt, and stunned by a decision that exceeded her deepest hopes. She took congratulatory calls from all over the world.

But in Guatemala the oligarchy remains powerful, and it continues to influence the judiciary. Ten days after the verdict, the country's five-member Constitutional Court, its highest, overturned the verdicts. The court ruled - despite strongly worded dissents from two judges - that prosecutors must reargue the latter part of their case, including testimony from some defense witnesses. (Expediente 1904-2013, Corte de Constitucionalidad (May 20, 2013).) Ríos Montt was returned to house arrest.

Judge Barrios's panel has since recused itself, and the replacement panel announced it could not renew proceedings before April 2014. But the record of the May 10 guilty verdict is circulating internationally, adding new elements of jurisprudence and important precedent to the case law on genocide. In particular, it invokes sexual violence as a demonstration of intent to destroy a social group, and also addresses psychological damage to survivors, and forced displacement. In much of Guatemala, the decision is being distributed in Spanish and the Mayan languages.

Bernabeu says she was disappointed by the annulment, but not surprised. "I thought Guatemala and its judges were set to give the world the greatest lesson against impunity," she told a reporter in June. "Today, however, I believe some institutions are not ready for a change, and therefore impunity persists."

She and her team from the CJA made plans to pursue the investigation of Ríos Montt again in Madrid. Then, even if the general is eventually acquitted in Guatemala, that country will be his prison; the Spanish court's active warrant for his arrest means traveling elsewhere would invite arrest and extradition to Spain.

Petite and quick to greet visitors with the warm abrazos of her Spanish homeland, Almudena Bernabeu Garcia, 41, came to San Francisco in 1999. The U.S. Congress, responding at the time to an influx of Central American refugees fleeing civil wars and counterinsurgency campaigns, had recently enacted the Nicaraguan Adjustment and Central American Relief Act (NACARA) (Pub. L. 105-100). Bernabeu assisted immigrants seeking political asylum or family reunification under provisions of the statute.

The experience had a lasting effect on her career. "I am reminded, every day, I am an immigrant," Bernabeu says today. "This is still a homogenous culture we have to aspire to. I have to prove myself three times more, including to other lawyers, but it has paid me back."

As a young law school graduate in Valencia, Spain, Bernabeu had been helping a friend prepare immigration papers when she stumbled into a local legal aid office there - a "basement of pathetic cubicles" she recalls, staffed by volunteers "who smoked too much, drank too much coffee, and still thought they could change the world." She was hooked. "Little miracles happen to me," she says of the serendipity, "even though everything that led me to today looks so linear now." She threw in her lot with immigrants' advocates and Amnesty International-Spain for four years, then emigrated to California.

"I was driven," Bernabeu says. "I was blown away by stories of all those who benefited from the sanctuary movement in Northern California."

Living in a cheap San Francisco apartment with a shared bathroom down the hall, she began working with immigration attorneys Byron B. Park and Karyn Taylor, filing as many as 300 NACARA requests a month.

Bernabeu came to know a local circle of figures who gave vital support to the new arrivals: There were immigration attorneys Marc Silverman and Mark L. Van Der Hout; Father Cuchulain Moriarty at the Castro District's Most Holy Redeemer Church (a priest whose name, it was said, every Central American who reached the Bay Area carried on a scrap of paper); Sister Maureen Duignan of the East Bay Sanctuary Covenant in Berkeley; and Felix Kury, a psychotherapist and human rights advocate from El Salvador who now teaches at San Francisco State University.

Educated entirely in Spain, Bernabeu took the California Bar exam in 2002 but was flummoxed by the multiple-choice section, which she failed to pass. She became "frankly depressed" at the prospect of dropping immigrants' cases and incipient human rights work to tackle preparation for the exam a second time.

"Felix Kury asked me, 'What did you study law for, and how can you do it?' " Bernabeu recalled.

She took her own path, becoming a registered foreign legal consultant in California (Cal. Rules of Court 9.44) and 20 other states while retaining her license to practice in Spain. She has been an investigator for the European Court for Human Rights, and is currently vice president of the Spanish Association for Human Rights.

It was also Kury who introduced Bernabeu to Gerald Gray, a San Francisco psychotherapist who treated torture survivors. Gray, along with attorney Paul Hoffman of Schonbrun DeSimone Seplow Harris Hoffman & Harrison in Venice, had founded the CJA with support from Amnesty International and the U.N. Voluntary Fund for Victims of Torture. Its mission was to assist torture survivors not only in healing, but also in pursuit of legal redress.

In 2002 Bernabeu volunteered to work on a CJA case on behalf of two Honduran immigrants who'd been tortured in the 1980s, and relatives of two other Hondurans who had disappeared at the same time. She joined CJA full time the next year.

CJA was a shop unlike any other Bernabeu had known, dedicated to hunting down egregious human rights abusers who expected no one would pursue them. The center's first client, a survivor of the Bosnian civil war, had recognized one of his torturers living in his adopted California community. "This was politics at a level I cared about," Bernabeu says. "I realized what potential there was at CJA for the kind of law I wanted to do."

Filing claims under the Alien Tort Statute (28 U.S.C. § 1350) and the Torture Victims Protection Act (Pub. L. No. 102-256), the center has brought cases in U.S. courts on behalf of clients in California and other states for human rights abuses committed in Sudan, Somalia, Cambodia, Bosnia-Herzegovina, and Central America. It has won tens of millions of dollars in default judgments.

In a milestone for CJA, Bernabeu led an investigation into the 1980 murder of El Salvadoran Archbishop Óscar Arnulfo Romero, who was assassinated while saying mass in a San Salvador hospital chapel. She flew to the city where the killing took place and risked a predawn car ride, blindfolded, to make contact with an informant. Investigators then tracked down an ex-army officer from the Romero death squad, operating a used-car dealership in Modesto. The officer fled, but CJA obtained a $10 million default judgment. U.S. District Judge Oliver W. Wanger stated from the bench, "the damages are of a magnitude that is hardly describable." (Doe v. Saravia, 348 F. Supp. 2d 1112 (E.D. Cal. 2004).)

For Bernabeu, the Romero case was a chance to contribute a "granito," or grain of sand, that helps to build a mountain. The legal victory also coincided with a turning point in her life - she met and later married Nicholas W. van Aelstyn, lead pro bono lawyer in the case and currently a partner in the San Francisco office of Beveridge & Diamond. Their son was born last year.

Back when Bernabeu was still in Spain filing legal petitions for would-be immigrants, investigating magistrate Baltasar Garzón of the Spanish National Court revived the concept of universal jurisdiction that had been established at the Nazi war crimes trials in Nuremberg, Germany, after World War II. The assertion of jurisdiction was simple enough: All human rights abuses in violation of international law - regardless of where they are committed - affect the common interests of humanity. In 1998 Garzón issued an international warrant for the arrest of former Chilean dictator Augusto Pinochet, charging him with the torture and disappearance of thousands of political opponents in the 1970s. When the British House of Lords subsequently ordered police to arrest Pinochet at a London hospital, Bernabeu says, she opened a bottle of champagne with friends and danced in front of her house.

"At the time, I don't think I even understood the scope of what it meant," she says. "But yes, my heart was fully involved."

Garzón's boldness encouraged claims in Spain brought by people all over the world who were unable to pursue former officials for human rights abuses at home. One claim came from Rigoberta Menchú Tum - a K'iche Maya and recipient of the Nobel Peace Prize - and a group of Spanish and Guatemalan organizations that together had filed the criminal complaint against Ríos Montt in Guatemala.

"When it comes to egregious human rights violations, two courts, two countries, can investigate and prosecute simultaneously without creating a conflict," Bernabeu explains. "Evidence in one country with high standards of admissibility - such as Spain - can then be admissible in another country - such as Guatemala - creating unprecedented ways of legal collaboration."

Impressed by Bernabeu's record at CJA, the Guatemalan plaintiffs invited her to join their case in Madrid. But in February 2003 the Spanish Supreme Court ruled that universal jurisdiction claims could not proceed unless the parties demonstrate a close tie to Spain. The court permitted the investigation of human rights abuses in Guatemala against Spanish citizens - but threw out claims brought by the Maya plaintiffs.

Two years later, however, Spain's Constitutional Court issued a historic reversal. "[R]estriction based on the nationality of the victims adds a limitation that is not provided for by law," the court held. "[E]specially with respect to genocide, it contradicts the very nature of the crime and the shared objective that it be combated universally." (Judgment No. 237/2005, Tribunal Constitucional de España, Second Chamber, Conc. of Law, X9.)

Bernabeu, then working with CJA in San Francisco, approached the Spanish National Court during its investigation of a former Argentine naval officer accused of committing crimes in the 1980s during that country's dirty war. She was asked to prepare women who had survived the infamous Buenos Aires torture center, known as ESMA, to testify. With prosecutor Miguel Ollé, Bernabeu attended the court sessions, entering with prosecutors, wearing a borrowed gown of the type customarily used in the chamber, and feeling "scared, honored, thrilled, emocionada." It would be the beginning of a synergetic relationship between the CJA and the courts in Madrid.

At a 2006 meeting of Guatemalan human rights defenders and lawyers - including Menchú and Paz y Paz - Bernabeu was chosen to lead the Ríos Montt prosecution in Spain. "I had a reputation as a problem solver and a 'miracle worker' - which I have my doubts about," she says. "But the truth is I have been successful, and CJA has been there backing me up."

CJA executive director Pamela Merchant adds, "We made a strategic decision to develop the case in Spain as a long-term strategy to support Guatemalan civil society's efforts to achieve justice at home. At the time, none of us could have hoped that there would be a [Guatemalan] prosecution - the first one in the world against a former head of state for genocide - only seven years later."

Bernabeu assembled an international team - including UC Hastings College of the Law professor Naomi Roht-Arriaza, an expert in human rights trials - and immersed herself in the case, collecting evidence and interviewing witnesses. She also engaged in legal battles over international arrest warrants for Ríos Montt, and Guatemala's refusal to extradite him to Spain. By February 2009, the CJA had brought more than 40 witnesses to Madrid to testify - from Maya widows who had never before left their villages to international experts in forensic anthropology and sexual violence.

A shift in Guatemalan governments in 2008 provided an opportunity to reopen the prosecution in that country. The testimony taken in Spain gave Paz y Paz's office details of the alleged massacres, and expert witnesses in forensic anthropology compiled graphic evidence from exhumations. Finally, the privately funded National Security Archive at George Washington University provided prosecutors with Guatemalan military plans that described the Ixil Maya as the internal "enemy," sympathetic to leftist guerrillas and targeted for violence.

Paz y Paz used the evidence to revive Rigoberta Menchú's long-dormant criminal case. During the trial, prosecutors used a legal theory centering on the sexual violence against victims - developed by CJA in Madrid. Ten women, hiding their faces with the woven stoles of their native costume, gave wrenching testimony of systematic sexual abuse by government soldiers. An expert witness framed that abuse as torture; Judge Barrios referred to it in her decision as an attempt to destroy "the seed" of the Ixil.

Ríos Montt's lawyers depended less on presenting exculpatory evidence than on tying the judicial process in knots with appeals, even filing writs for constitutional protection of their individual rights. "For every prosecutor in court," Bernabeu recalls, there were "at least 15 others working day and night to file responses to defense challenges."

During one tense court session, a defense lawyer shook his finger threateningly at Judge Barrios. Roht-Arriaza whispered to me, "Watch, they're going to walk." A moment later the entire team of attorneys grabbed their briefcases and vacated the chamber as Barrios fruitlessly ordered them to return.

The CJA lawyers also acted as real-time advisors. When an international human rights law expert began giving expansive responses to questions, for example, Bernabeu scrambled down from the gallery to talk with prosecutors. "He wasn't a hostile witness, but my experience told me that it is dangerous to let expert testimony go beyond the answer to the question," she says. "They had to rein him in."

CJA gave support outside the courtroom as well, hosting events for international guests including judges and prosecutors from Argentina, Uruguay, Peru, and Chile. The notables, assembled by the nonprofit Washington Office on Latin America and several international NGOs, had put war criminals in jail in their own countries and came to Guatemala City to lend credibility to the ongoing trial.

Even celebratory events had deeper meaning. When CJA recently presented Paz y Paz with its annual Human Rights Award in San Francisco, it hosted a dinner for the honoree, who lives "with a sword over her head," as one guest put it. Public attention, CJA hoped, could offer courageous officials a measure of protection from those who might do them harm.

But in Guatemala City the trial would not stay at arm's length. One international expert witness told me at a social gathering that the Public Ministry suggested he leave the country because its security agents were stretched too thin to protect him; an armed escort later accompanied him to the airport. At the same event, a massacre survivor who had given public testimony thanked foreigners in attendance for not abandoning Maya who are now exposed to retribution. Unexpectedly, the man choked up. As Bernabeu translated his words, she put an arm around his shoulders as he wept openly.

"The most difficult aspects of the work," Bernabeu says, "have been political and sociological." She told filmmaker Pamela Yates in the documentary, Granito: How to Nail a Dictator (2012), "I had the most difficult experiences of peoples' lives in my hands."

Bernabeu first encountered Yates's work while searching for evidence to establish Ríos Montt's responsibility for ordering massacres in Maya villages. She had screened Yates's earlier documentary, When the Mountains Tremble, which was filmed during the general's regime, and then asked if relevant material might exist in outtakes. Yates searched through boxes of film cans stored in a New Jersey warehouse and hit the jackpot. She provided footage of Ríos Montt to Bernabeu, who presented it to the Spanish National Court and later passed it to Paz y Paz's office in Guatemala.

In an unforgettable morning during the trial, before the unblinking gaze of the defendant, prosecutors projected the outtakes onto a screen set up beside the judges' dais. There, a much younger Gen. Ríos Montt appeared - his hair blacker, his voice deeper. "Our strength is in our capacity for command," he said in Spanish. "If I can't control the army, what am I doing here?"

Two weeks before the verdict was reached, Bernabeu and her CJA colleagues huddled in a Guatemala City hotel lobby in anticipation of a crucial U.S. Supreme Court ruling involving the Alien Tort Statute. The ATS, enacted in 1789, established U.S. jurisdiction in borderless crimes such as piracy but has been used in recent decades to pursue overseas human rights abuses.

In a unanimous ruling on April 17, however, the Court held that a presumption against extraterritoriality applies to claims under the act. "There is no indication that the ATS was passed to make the United States a uniquely hospitable forum for the enforcement of international norms," wrote Chief Justice John Roberts. (Kiobel v. Royal Dutch Petroleum Co., 133 S.Ct 1659, 1668 (2013).)

Bernabeu and CJA's Merchant listened as Kathy Roberts, the center's legal director, read the opinion aloud from the screen on her cell phone. "Decision unanimous ... reasoning split," she summarized. The three women looked stunned.

"Not good news," Bernabeu said. In an instant she fished her own cell phone from a handbag and began making calls to the United States. I tried to record the moment with a camera, following the others outside, where a shuttle bus to the courthouse was waiting. "Stop taking pictures," pleaded Merchant. "This is a funeral."

As the rest of the CJA delegation rushed off, Merchant stayed behind to compose a joint media statement with the Center for Constitutional Rights in New York and EarthRights International in Washington, D.C.: "Today's opinion was a missed opportunity to send a crystal clear message: The world's torturers and war criminals are not above the law - and neither are their accomplices."

Two days later, Bernabeu was still angry about the Kiobel ruling when we talked at a neighborhood café. "The U.S. legal system turns its back on victims of these crimes," she said. At the tables around us, patrons were reading newspaper accounts of the Ríos Montt trial, with summarized testimony describing exhumed mass graves and the forcible removal of Ixil children from their communities. Paz y Paz's office had pulled back the curtain hiding a chapter of Guatemala's history.

"I have talked to so many survivors, in the mountains or here in office buildings, during discussions of their testimony," Bernabeu said. "For the victims, justice is not a report or apology - or even the truth. It is accountability established officially, and this only happens in a courthouse."

Though a single charge of war crimes against Ríos Montt might have been easier to prove, she noted, the Ixil victims had insisted on adding the charge of genocide.

"Our cases are going to be OK" even after Kiobel, Bernabeu predicted. Nevertheless, the legal basis for prosecuting violations of international human rights is eroding. Last year, the U.S. Supreme Court granted certiorari in two more Alien Tort Statute cases - permitting it to decide whether the law applies to corporations or other legal entities. (Rio Tinto PLC v. Sarei, No. 11-649; Daimler-Chrysler A.G. v. Bauman, No. 11-965.)

In Spain, Judge Garzón's ability to assert universal jurisdiction also ended abruptly last year when he was suspended from practice for eleven years for illegally ordering wiretaps in a corruption investigation; the case was one of three that Garzón's political opponents had filed against him. (The Ríos Montt case continues before a fellow magistrate.)

Bernabeu is intent on furthering Garzón's tradition. "The world has changed," she contends. "But in the United States we have a 19th-century view - with fixed borders, using a different map."

The old perspective, Bernabeu says, "means the U.S. walks into a room of nations and doesn't see them horizontally, but like a father, looking over and down at the others. That's not the way the rest of the world sees things anymore."

Mary Jo McConahay is the author of Maya Roads, One Woman's Journey Among the People of the Rainforest (Chicago Review Press).

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