The trial for Guatemala’s ex-dictator José Efraín Ríos Montt and former Intelligence Director Mauricio Rodríguez Sánchez entered its fourteenth day on April 10, 2013. Judge Yassmin Barrios’ court heard the testimony of eight more expert witnesses, including three defense experts who offered testimony on issues of chain of command as well as the history of the Guatemalan guerilla insurgency. The mood in the courtroom ranged from civil to highly contentious and the conclusions of the experts did little to simplify any of the issues in this increasingly complex case. In the defense’s continued attempt to challenge the prosecution’s theory of command responsibility against the two defendants, it offered a set of witnesses that sought to dispel the notion that the defendants directly ordered the military campaigns of the early 1980s that led to the killing of more than 1,700 indigenous people, claiming instead that the defendants had mere knowledge of such massacres. Under some international guidelines of command responsibility, established by recent jurisprudence and statutes of international criminal tribunals, mere knowledge and failure to punish subordinates is sufficient to establish command responsibility over the superiors for their troops’ conduct.

José Luis Quilo Ayuso, an important defense witness, offered his expert opinion on chain of command and superior liability issues. A retired veteran of the armed forces, Ayuso served under Ríos Montt in the early 1970s. From 1983-1984 he spent time in the Quiché area of the country, the same geographic region where many of the alleged massacres against the Ixil-Mayan people took place. As part of his expert background and education, Ayuso also testified that he received training at the National Defense University in Washington, D.C., which prepares selected military and civilians for leadership in developing national security strategy. Ayuso’s expert testimony contained specific conclusions about the power structures created by military laws and the mandates of the various military and political positions and titles. Ayuso expressed his opinion that the Chief of the General Staff, a position not held by either Ríos Montt or Rodríguez Sánchez in 1982 or 1983, is the person who gives written directives to the military field commanders, who in turn decide and carry out the military operations.

With regard to Ríos Montt, Ayuso characterized him as the Commander in Chief (Comandante en General), opining that under the law Ríos Montt could only set military policy at a national level and was not responsible for military campaigns during his1982-1983 reign. The Chief of the General Staff (Estado Mayor) and not the Commander in Chief or Minister of Defense possessed the mandate to issue orders, he said, and further down the chain, the Zone Commanders were responsible for implementing those orders. Ayuso stated that the Commander in Chief has “command” (mando) and testified that the orders for operational plans did not fall from, or rise to, the level of Commander in Chief. Asked to explain who made up the High Command, Ayuso answered that it was the Commander in Chief, the Minister of Defense, and the Chief of the General Staff and that Ríos Montt occupied the first two of these positions. Ayuso later stated that although certain military operational plans mention the Commander in Chief, it only means that the information was relayed to him, but not that he ordered it.

Ayuso also testified regarding Rodríguez Sánchez, who served as Chief of Intelligence in the General Staff in the early 1980s, and said that he would have been outside the chain of command and could not issue orders to military field commanders. Under the law, the heads of the sections only make recommendations to the Chief of the General Staff. When asked by the prosecution why the Chief of Intelligence’s signature would appear in documents discussing military operations, Ayuso testified that it was only as a form of authentication or acknowledgement of receipt. In his expert opinion, a signature, however, implies official knowledge of a policy or operation, thus creating the possibility of liability under a theory of command responsibility. The Chief, or Director, of Intelligence (also known as “G-2”) assisted the Chief of the General Staff by collecting information about security threats and enemies, but mostly his job was to maintain all information collected by the various sections of the army, according to Ayuso.

Article 28 of the Rome Statute—which established the International Criminal Court, the world’s first permanent international criminal tribunal for trying individuals charged with war crimes, crimes against humanity, genocide, or crimes of aggression—allows for the possibility of holding commanders liable for the action of their subordinates upon mere knowledge. It specifically states that a military commander may be criminally responsible for crimes committed by his subordinates under his effective authority where he “knew or, owing to the circumstances at the time, should have known, that the forces were committing or about to commit such crimes.” The military commander may further be held liable if he “failed to take all necessary and reasonable measures . . . to prevent or repress their commission or submit the matter to the competent authorities for investigation and prosecution.” According to such a standard, which is similar to that in Article 7 of the Statute of the International Criminal Tribunal for the Former Yugoslavia and Article 6 of the Statute of the International Criminal Tribunal for Rwanda, a commander who had knowledge of criminal acts and failed to take measures to punish those responsible could be held liable. Ayuso’s testimony implies that Ríos Montt and  Rodríguez Sánchez both had such knowledge.

This testimony of the experts introduced evidence that poses significant challenges to the prosecution’s theory on the defendants’ liability for the massacres of the Ixil-Mayan by the Guatemalan army. However, careful examination of the international standards for commander liability and the responsibility of superiors for the actions of their subordinates presents an opportunity for accountability and justice for survivors of these atrocities. Although the court is not technically bound to follow international criminal liability standards in its national adjudications, the case presents an opportunity for the development of a domestic law by which future violations can be adjudicated.

Ali Beydoun 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.

*Ali Beydoun, Esq., serves as the clinic’s director and supervisor for the UNROW Human Rights Impact Litigation Clinic at the Washington College of Law. Ali’s international litigation work includes a class action suit against Henry Kissinger by Chilean government victims seeking money damages for the wrongful deaths of their family members, representing U.S. citizens incarcerated under illegal immigration detainers, investigations and submissions to the United Nations on behalf of Tamil victims of the 2009 genocide, and Chagossians seeking redress for forced exile and torture by U.S. and U.K. government officials. Ali has lectured on his human rights cases at the University of Madras in Chennai, India, Universidad Nacional de Itapúa in Encarnación, Paraguay, Universidad de Centro America in San Salvador, El Salvador, and several U.S. law schools.