Saturday, June 22, 2013

Guatemala: Guatemala’s Rios Montt Genocide Prosecution: The Legal Disarray Continues

Source: Open Society Foundations

Guatemala’s Rios Montt Genocide Prosecution: The Legal Disarray Continues

by Emi MacLean

The news that Guatemala’s highest court partially annulled the judgment and trial in the case of Efrain Rios Montt, the country’s former military ruler, essentially on a technicality, shook Guatemala and the international community when it was announced on May 20. The Constitutional Court issued its resolution only three days after the trial court had produced an extensively detailed judgment laying the basis for the genocide and crimes against humanity conviction of the former dictator, who ruled Guatemala during the bloodiest period of the country’s 36-year armed conflict. This was the first conviction of a former head of state for genocide in a domestic court, but followed a line of cases prosecuting military leaders, particularly in Latin America, for crimes committed during some of the more brutal periods of the region’s history.

The Constitutional Court’s May 20 decision produced many questions. Among them: What is the legal and historical significance of the more than 700-page decision produced by the trial court that found Rios Montt guilty? Will there be a new trial—and if so when, and before which judges? Will there be other legal and political barriers which prevent any further prosecution of Rios Montt? What is Rios Montt’s status following the Constitutional Court decision?

A record of the trial proceedings can be found at, a monitoring project run by the Justice Initiative in collaboration with Center for Justice and International Law, the International Center for Transitional Justice, the National Security Archive, and the Guatemalan investigative journalism website, Plaza Publica.

Events over the past weeks have answered some of these questions even while raising others.

Currently, the legal proceedings remain in disarray.

There is no longer much expectation that any new trial will re-start soon. Soon after the Constitutional Court’s judgment, the initial trial court was forced to disqualify itself, having already issued an opinion in the case. A new trial court was eventually assigned, but has indicated it has its plate full until April 2014.

Even with a new trial court assigned, the procedural effects of the Constitutional Court’s decision are still unclear, and will likely continue to be until further pronouncements from the new trial court, or a higher court. Any decision to rehear the evidence raises the possible of a re-victimization of the witnesses, as well as exposing them to the potential safety risk of having to testify again. Edgar Perez, attorney for one of the civil parties, has described the Guatemalan judicial system as in crisis, and he and has said that the Constitutional Court still needs to provide guidance if the case is to restart.

Adding to the uncertainty, the Constitutional Court is considering various petitions seeking the former de facto president’s amnesty, with hearings on May 29 and June 6. The Constitutional Court said on June 12 that it in considering three pending petitions seeking an amnesty for Rios Montt. The defense asserts that a 1986 general amnesty—issued by General Humberto Mejia Victores, the dictator who succeeded Rios Montt—prevents the prosecution despite the subsequent revocation of the decree during the peace accords, and its incompatibility with international law. Rios Montt argues that the subsequent rejection of the amnesty cannot retroactively take this “right” away from him, and that any international law that suggests otherwise is either wholly irrelevant or inapplicable in this instance.

The prosecution and the civil parties strongly contest these assertions. A domestic law excludes explicitly from any amnesty the crimes of genocide, torture, forced disappearance, and other international crimes—a sound rejection of the 1986 general amnesty. Further, Guatemala had ratified the Geneva Conventions and the Genocide Convention at the time of the Mejia Victores amnesty, and the country’s national criminal code already defined genocide and crimes against humanity. International law prohibits so-called “self-amnesties”; amnesties or other prescription of genocide, crimes against humanity and other international crimes; and any amnesty which would limit the victims’ rights to an effective remedy or the truth. Thus, according to the prosecution and civil parties (as well as the UN Committee Against Torture, the UN High Commissioner for Human Rights, and the Inter-American Court of Human Rights, among others), the 1986 amnesty was never valid in the first place.

Three weeks ago, on May 27, the Constitutional Court also re-affirmed its previous decision to partially nullify the trial, in another divided 3-2 resolution (a “clarification”). Immediately after the May 20 Constitutional Court judgment, the prosecution asked the court to clarify (1) why it contradicted an earlier judgment in the same case which recognized the inability to return the process to already completed stages; (2) why it ordered a remedy never sought by the defense (the partial nullification); and (3) why it intervened in a procedural matter rather than permit the normal processes to advance (the apelacion especial, under normal processes of criminal procedure).

The majority of the Constitutional Court, in its clarification, expressed that there was no inconsistency with earlier judgments or the defense’s requested remedy. The Court also deemed itself the appropriate body, and the constitutional challenge (amparo) an appropriate mechanism, to deal with this issue. Though the Court’s May 20 upending judgment was only about a procedural question—whether the trial should have been suspended until the defense concluded its appeals related to its request for the disqualification of two trial court judges—the Court in its May 27 clarification said that the underlying issues were the defense’s right to an attorney and an impartial tribunal.

Judges Gloria Patricia Porras and Mauro Chacon issued another pair of strident dissents, after having dissented from the May 20 judgment. Judge Porras, for her part, continued to assert that the decision was wholly baseless—as the defense challenge was itself without a foundation. Judge Chacon continued to insist that the Constitutional Court intervened improperly when this “strictly procedural” challenge should have been heard through the normal criminal appeals process, as the prosecution asserted. Judge Chacon accuses the majority of creating arguments that the defense never itself provided—including that this is fundamentally about the impartiality of the tribunal—in order to defend its intervention when these issues should have been resolved through ordinary, and not extraordinary, means. Both Judges Porras and Chacon urged that the defense attorney acted unethically and in violation of domestic law—and that the majority’s judgment endorsed these actions.

Various domestic and international actors have intervened with concern about the direction of this historic process. Among them, the UN Committee Against Torture called for accountability and judicial independence, and flatly rejected that an amnesty could properly prohibit prosecution for charges of this magnitude. The Nobel Women’s Initiative, including Guatemalan Nobel laureate Rigoberta Menchú and four other women Nobel laureates, released a statement calling for Guatemala to “respect the rights of the survivors of atrocities”—and to resist the trial “com[ing] to represent a failure of justice and a victory for impunity for those who suffered huge loss and suffering during the genocide.”

Meanwhile, Rios Montt himself has been released from the military hospital where he was transfered after a brief stint in prison, and has been returned to house arrest.