Defunct Amnesty Decree Haunts Guatemala Genocide Case | Freedom House

Defunct Amnesty Decree Haunts Guatemala Genocide Case

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After a military coup in March 1982, General José Efrain Rios Montt presided over Guatemala’s military government for what is seen as one of the worst periods of the state’s brutal “rural pacification” campaign. In a Guatemalan courtroom this past spring, more than 90 witnesses testified against Rios Montt, who faces genocide charges related to 15 massacres against men, women, and children in indigenous Maya Ixil villages. The specific crimes investigators were able to document and attribute to Rios Montt’s leadership during his 18-month de facto presidency included 1,771 deaths, the forced displacement of 29,000 people, sexual violence against at least 8 women, and the torture of at least 14 people.

On May 10, after decades of impunity, the octogenarian was convicted of genocide and war crimes, marking the first time a former head of state has been successfully prosecuted for such offenses in his own country. Ten days later, however, a divided Constitutional Court threw out the conviction, ordering the lower court to restart the trial from the closing arguments. While the confusing 3–2 decision was based on procedural issues related to Rios Montt’s defense attorney, the opinions issued by the two dissenting judges raise troubling questions about the competence and independence of Guatemala’s judiciary. The future of this trial and prosecutions of other perpetrators of grave crimes in Guatemala are now in doubt, especially after officials decided recently not to resume Rios Montt’s trial until January 2015, postponing legal remedies by yet another year.

Disturbingly, beyond merely overturning the verdict, the Constitutional Court also reopened the question of whether an outdated amnesty decree could apply to the case. The decree was issued in 1986 by Rios Montt’s successor, General Óscar Humberto Mejía Victores. For the 10 years it was in effect, Decree 8-86 indemnified anyone responsible for, or accused of, political and related common crimes committed between March 23, 1982, and January 14, 1986—dates that exactly coincide with the two generals’ terms in power. Eventually, the decree was superseded by Guatemala’s National Reconciliation Law of 1996.

By unearthing the defunct amnesty, the Constitutional Court is not merely going against Guatemala’s own laws, but also breaching the widely accepted if still nascent norm of international human rights law that prohibits amnesties for war crimes and crimes against humanity. The Inter-American Court of Human Rights (IACtHR), whose rulings have force in Guatemala’s justice system, has previously abrogated similar self-amnesty decrees in other countries, in the cases of Velásquez Rodriguez v. Honduras, Barrios Altos v. Peru, and Bulacio v. Argentina. Should the lower court eventually grant Rios Montt amnesty, the prosecution will most certainly appeal to the IACtHR, which underscores the utility of international courts and tribunals as venues of last resort for human rights.

In his concurring opinion in the Peru case, Judge Antônio Augusto Cançado Trindade notes that the failure of states to hold abusers accountable for their international crimes, especially through deliberate tactics such as amnesties and other official immunities, erodes the “confidence of the population in public institutions.” In other words, punishment of individual violators preserves the social contract and upholds the legitimacy and authority of democratic rule, which is based on popular consent. When a state’s immediate political interests do not align with its long-term obligations, there is a critical role for international law to play in overriding unjust domestic statutes and preserving the foundations of democracy.

Whether the Rios Montt conviction is eventually upheld in Guatemala’s courts or referred to the IACtHR, the case—and similar trials of government leaders for mass violations of human rights—is representative of a broader shift toward global justice standards and the rejection of impunity through the IACtHR, the European Court of Human Rights, the International Criminal Court, hybrid tribunals, and other such mechanisms.

In practice, enforcing international justice standards entails maximizing limited resources, balancing short-term costs with long-term benefits, and adapting to the realities of local power dynamics. Nevertheless, many states—including Guatemala—have affirmed their obligations regarding serious human rights violations in various international declarations and instruments, such as the Universal Declaration on Human Rights (Article 8), the International Covenant on Civil and Political Rights (Article 2), the Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity, and the Principles and Guidelines on the Right to a Remedy and Reparation for Victims of Gross Violations of International Human Rights Law and Serious Violations of International Humanitarian Law.

Fifteen years after the passage of Guatemala’s National Reconciliation Law, the atrocities committed during the 36-year civil conflict have yet to be adequately punished, and the effects of this year’s Constitutional Court ruling may not be known for another year or more. Last month, prosecutors and witnesses in the Rios Montt trial petitioned the Inter-American Commission on Human Rights, asking it to ensure that Guatemala complies with its international commitments to investigate and punish those responsible for serious violations of human rights. Such an intervention appears necessary if victims and their families are to obtain justice without further unreasonable delays.

If, however, the outdated and unlawful amnesty decree is successfully resurrected to reverse the court’s original guilty verdict, it would indeed erode domestic—as well as international—confidence in the will and ability of Guatemala’s institutions to uphold democratic principles and human rights for all citizens.

Gigi Alford is a graduate student in Oxford University’s Master’s Program in International Human Rights Law.

Photo Credit: Indymedia

Analyses and recommendations offered by the authors do not necessarily reflect those of Freedom House.

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