El Mozote Judge Asks Defense for a Report on the Law that Required Documenting Military Operations During the War

The judge in the El Mozote case issued a resolution on Monday, October 23, with several requests for information addressed to the Presidency of the Republic that attempts to get to the bottom of the Armed Forces’ consistent refusal to provide information. This is a formal request from the court, made through the Secretariat for Legislative and Legal Affairs of the Presidency, but it is the Ministry of National Defense’s responsibility to respond.

One of Judge Jorge Alberto Guzmán Urquilla’s requests is to provide a special report on article 44 of the 1961 Organic Law of the Ministry of Defense. Article 44 says: "In times of war, the organization, jurisdiction, and missions of military units will be established in the executive documents prepared by the General Staff of the Armed Forces."

The relevance of this petition lies in the persistent refusal of the Ministry of Defense to provide information regarding “Operation Rescue,” which took place between December 10th and 13th, 1981, in several municipalities north of Morazán. Their reluctance to cooperate with the legal system continued when the case was reopened in September 2016.

The first documented refusal of military information happened in 1993, when then-defense minister René Emilio Ponce told the Truth Commission that the information did not exist.

Private prosecutors have made consistent requests for information since the case was re-opened in 2006, but those requests were blocked by the amnesty law. Progress in the investigation was prevented until last year, when the amnesty law was declared unconstitutional and the judicial process was reinitiated. However, the answer from the Armed Forces has always been the same: the information does not exist.

"We have the pitiful response that there is absolutely nothing: no record of operations, of the units that participated, no complete list or roster of the Atlacatl Battalion or even the military as a whole," said David Morales, attorney on the private prosecution team.

Juan José Benavides, representing the Attorney General’s Office on the prosecution team, told Revista Factum that they have not heard anything yet in response to this latest request to the Presidency. He did say that two weeks ago, the defense presented two boxes to the court with more than 1,000 pages detailing administrative processes, including the process followed after a request for information about officers’ participation in the events of December 1981.

"This response from the Ministry of Defense detailed the procedure that was followed to look for the information. They conclude that the requested information was not found; however, they do include officer payrolls and the time periods during which they held positions," said Benavides.

The Attorney General’s Office confirms that a continued lack of information will trigger an investigation to determine what happened to those files. It will be the responsibility of military authorities to respond at that point, said Benavides.

In January of this year, the Supreme Court ruled that the ministry should reconstruct information related to two massacres against civilians in San Vicente and Cuscatlán committed by the Army during the internal armed conflict. This ruling was in relation to the 2014 request by the NGO Madeleine Lagadec through the Institute of Access to Information.

In April 2017, Minister of Defense David Munguía Payés alleged that this information did not exist, and that the military did not have a system for protecting and classifying information at that time, according to El Diario de Hoy.

This would be the main argument for the defense lawyers to dismantle the accusation against the 18 soldiers accused in the El Mozote massacre: there is no order to prove they are the intellectual authors of the execution of more than 1,000 people. In addition to the killings, the officers are accused of rape, robbery, and arson, among other things, for a total of nine crimes under the 1973 Penal Code, which was in force in 1981.

"In this case, the only way to issue a conviction against so-and-so is with direct evidence. There is no other way. Here, certainty is demanded. (...) In this trial, two things are important: if the facts are true, and if they can be attributed to specific people. That is the point," defense attorney Lisandro Quintanilla said on October 12, following the testimony of witness Dorila Márquez.

Factum: Can it be argued that the officers, as part of the High Command, did not know about the order?

Lisandro Quintanilla: No, I'm not claiming that, but I haven’t seen that order; have you seen it?

Factum: No, I haven’t seen it because the military did not provide it.

Lisandro Quintanilla: So, I don’t know what order you’re talking about.

 

ADDITIONAL REQUESTS FROM THE COURT TO THE DEFENSE

The Second Judge of First Instance Jorge Alberto Guzmán also requested:

·      the list of soldiers who were part of the special regime during the military operations in northern Morazán on the days in question;

·      accusations against the 18 military leaders from 1980-1992;

·      the list of troops at the scene;

·      logistical documents regarding equipment;

·      the names of defense school directors;

·      a certified copy of the legal instruments relating to the Ministry of Defense;

·      and the Institute of Legal Medicine (IML) report on the list of experts and forensic anthropologists who participated in the exhumations of the massacre victims' remains.

 

Translated from Kiernan, M.C. (October 26, 2017). Juez del caso El Mozote pide a Defensa informe sobre ley que obligaba documentar operaciones durante la guerra. Revista Factum. Retrieved from http://revistafactum.com/juez-del-caso-mozote-pide-defensa-informe-ley-obligaba-documentar-operaciones-la-guerra/

Hannah Rose Nelson