Guatemala Trial Presents a Test for Evidentiary Standards in Human Rights Trials

Judges hear testimony from expert witnesses from the Guatemalan Forensic Anthropology Foundation on April 9. Photo by Christina M. Fetterhoff/Human Rights Brief.

After judges in the trial of Efraín Ríos Montt and Mauricio Rodríguez Sánchez heard from scores of victims over the last few weeks who testified about the horrors they experienced during the early 1980s in Guatemala, the genocide trial shifted focus this week. Adding to the fist-person accounts, judges heard testimony beginning April 8 from expert witnesses specializing in forensic, biological, and social anthropology, as well as forensic archaeology. Although the role of forensic anthropology is perhaps well-known as important in the fight against impunity for mass violence and the realization of the right to truth, (as discussed in the Human Rights Brief‘s publication of the proceedings from the 2012 conference on Forensic Evidence in the Fight Against Torture), biological and social anthropology are relatively less-well-known fields, and are often seen as “soft science” not appropriate to a trial setting. In contrast, according to the Guatemalan Forensic Anthropology Foundation (Fundación de Antropología Forense de Guatemala, FAFG) biological anthropologists specialize in DNA testing and social anthropologists in interviews of family members and other witnesses. Although the defense team challenged the soft science of the interviews, it became evident as the day wore on that this sort of information collection and testimony is an essential piece of the puzzle and indeed a relevant source of admissible evidence. Notably, the expert anthropologists presented evidence identifying the origin of dozens and dozens of clandestine graves, thus helping piece together the identification of victims and perpetrators.

For example, anthropologists and archeologists from the FAFG who participated in mass exhumations presented and ratified the details of their reports, prepared for the Public Ministry, giving specifics not only of the archaeological excavations of human remains from the Quiché region of Guatemala, but also discussing the numerous FAFG interviews with survivors in order to create what is known as a “closed context” for a particular case. The testimony of these experts highlighted how, by working together, archaeologists and anthropologists from different fields corroborated forensic analysis with survivor testimonials in order to ascertain to whom the exhumed remains belonged. Once the remains of a person are identified, the context is considered closed. Expert witnesses yesterday and today read off lists of these names, along with an estimation of the individuals’ ages when they died. The majority of the victims were females, and many (both male and female) were children.

Although it is indisputable that this expert testimony has been powerful, the defense has challenged its admissibility with what the judges called ambiguous and weak objections ranging from complaints concerning experts’ professional titles to the rigor of their work. Unlike in the United States, where there are detailed and stringent evidentiary standards—especially for forensic evidence—other domestic courts as well as international tribunals have standards that are not as strict. Regarding crimes for mass human rights violations like genocide and crimes against humanity, Guatemala is the first domestic court to tackle such prosecutions in domestic courts and the only parallel jurisprudential situations have arose from the fairly recent creation of international tribunals. The International Criminal Tribunal for the Former Yugoslavia (ICTY) for example, which admitted a lot of forensic evidence, did include general provisions regulating evidentiary matters before the Trial Chambers in its Rules of Procedure and Evidence (Rule 89). However, they did not include a detailed set of technical rules, rather maintaining the general tests of relevance, probity, and unfair prejudice. Likewise, Chapter 4, Section I of the Rules of Procedure and Evidence of the International Criminal Court, sets out general provisions regarding evidence, but it does not address the specifics of forensic or other anthropological evidence of the type presented in Guatemala on April 8 and 9.

In addition to a lack of clear evidentiary standards, the Guatemalan court is faced with the difficulty of sifting through evidence that is over thirty years old. The deterioration of the forensic evidences, however, contrasts sharply with the testimony of the survivors, whose memories of the atrocities were articulated as sharply and clearly as if the events had happened yesterday. The historic importance of this trial cannot be overstated, however it could also serve as a precedent to support and strengthen emerging international evidentiary standards—particularly as they expand into domestic jurisprudence—or easily become victim to the absence of any general established provisions that can be cited as a relevant rule. If Guatemala is to serve as a model for other countries seeking to bring perpetrators accountable for past horrors, the court will have to navigate the challenges of looking at reliable, scientific evidence while keeping in mind that the mass graves are filled with individual people and names that deserve justice.

Christina Fetterhoff observed this testimony in Guatemala City. The staffs of the UNROW Human Rights Impact Litigation Clinic and the Human Rights Brief contributed additional research in Washington, D.C.

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