Commentary, Coincidence, correlation, causation, and records of courts

Coincidence, correlation, causation. Within 16 days of each other in late May and early June, Congolese warlord Jean-Pierre Bemba’s conviction was overturned on appeal by the International Criminal Court (ICC) and four former senior military officers in Guatemala were convicted of crimes against humanity. That was a coincidence. Both court decisions created political upheavals in the countries involved. Whether that is correlation or causation is more complicated.

Despite a voluminous case file and a conviction in the lower court, on June 8 the ICC appeals judges, by a 3-2 decision, overturned Bemba’s 2016 conviction for war crimes in the Central African Republic. He flew back to the Democratic Republic of Congo (DRC), on August 1, to be greeted by “throngs of people—many in T-shirts, hats and scarves bearing his likeness,” according to Reuters. Bemba quickly followed his “thunderous welcome” (as African Arguments reported) by filing to run for president in the election scheduled for December. The DRC constitution sets a limit of two terms for the president, which expired in 2016 for the current president, Joseph Kabila, but he did not step down. At Bemba’s return, his supporters chanted, “Kabila, know that Bemba is back,” and “hours before the deadline to register candidates,” Kabila’s party announced that its presidential candidate would be Emmanuel Ramazani Shadary, who is under European Union sanctions for his role in the crackdown on protests in 2016 when Kabila did not depart. In addition to Bemba, more than a dozen other men have filed to run for president. But is there a correlation—that is, a relationship between two or more things—between Bemba’s triumphant return and Kabila’s decision to step aside?

Bemba appears to be favored to win the election. African Arguments called him “a deeply flawed candidate,” but urged the public to “get behind Bemba,” because “a rough and muddy diamond is more valuable than certain despair.” Bemba has spent the last ten years at the ICC, and as Olivia Bueno pointed out in an opinion piece for the Open Society Justice Initiative, most Congolese “never believed in Bemba’s guilt.” With the court sitting far away and most of the public unable to see the hearings, understand the language of the court (physical and legal), hear the witnesses, read the transcript or review the evidence, the process lacked credibility to the Congolese voter. The record is there, but it is distant. Until international courts figure out how to share their proceedings with the affected populace (there is substantial literature on court “outreach” problems) and court archives begin providing more of the evidence on line, judging the actions of a man like Bemba and weighing his suitability to be your president will be based on serious information gaps. https://www.ijmonitor.org/2018/08/impact-of-the-bemba-acquittal-already-seen-in-the-democratic-republic-of-congo/; https://www.reuters.com/article/us-congo-politics-bemba/supporters-of-congo-opposition-leader-bemba-await-his-return-home-idUSKBN1KM42C; http://africanarguments.org/2018/08/10/drc-congo-time-opposition-get-behind-bemba/

Unlike the distant Bemba trial, the Molina Theissen case dominated Guatemala news during its three-month trial and unanimous May 23 verdict. Again, the trial record is enormous--even the court’s judgment ran to 1,075 pages. As Jo-Marie Burt and Paulo Estrada wrote in a three-part examination of the judgment, “Official military documents, international treaties, and domestic jurisprudence were fundamental to the court’s determination,” and the judges “referred to convictions handed down by Guatemalan courts for the enforced disappearance of Fernando Garcia and Edgar Enrique Saenz Calito, the Spanish Embassy massacre, the Maya Ixil genocide, and the sexual violence and sexual and domestic slavery against Maya Q’eqchi women in Sepur Zarco, among others.”

The consequences of the judgment came quickly. As gAZeta pointed out, in the Garcia and especially the Molina Theissen case, documents from Guatemala’s Historical Archives of the National Police (AHPN) were used by prosecutors to show that the victims were detained by police who handed them over to military units: “conclusive documentary evidence.” Many former members of the military and police units active during Guatemala’s long and bloody civil war are today overt or covert powers in the government. They don’t like the possibility that existing documentation could be used against them in some future public process. So, it is perhaps neither coincidence or correlation but cause that, following the Molina Theissen trial and with more cases hovering in the future, the police archives was removed from the oversight of the national archives (Archivo General de Centroamerica) and reassigned to the vice minister of culture for “Patrimonio,” and the founding executive director of the police archives, Gustavo Meoño, was informed that his contract (which expired on July 31) would not be renewed. One of the most puzzling elements of the changes is the assignment of a member of the Guatemala office of the United Nations Development Program to be the director of AHPN. Neither of these newly responsible persons is known to have archival experience. The representative of the United Nations High Commissioner for Human Rights in Colombia wrote to his social network that the changes were “a strategy to silence the archive,” a statement that was subsequently removed from the posting but had already been picked up by the press. 

In the wake of these events, a group of individuals and nongovernmental organizations created a petition, asking questions about the situation and demanding a guarantee that the police archives will be preserved and continue to be open for use by institutions, organizations and individuals, and that the investigations undertaken by the archives’ staff will continue. The petition, open for signature, is an annex to this issue. The U.S. nongovernmental organization National Security Archive is collecting institutional and individual signatures to be forwarded to Archives without Borders, which will coordinate the international response and the presentation of the petition to the responsible officials. 
http://www.gt.undp.org/content/guatemala/es/home/presscenter/pressreleases/2018/08/COMUNICADO/archivo-historico-de-la-policia-nacional--ahpn-/ ;  https://www.ijmonitor.org/2018/08/the-molina-theissen-judgment-part-i-overview-of-the-courts-findings/;  http://gazeta.gt/category/especial-ahpn/ ; https://m.eldiario.es/politica/ONU-Archivo-Historico-Policia-Guatemala_0_800020021.html; http://gazeta.gt/gustavo-meono-brenner/