Guatemala: Impunity, or Justice for Crimes of the Past?

Defending impunity for the architects of state terror

Source: Cascadia Solidaria

Under cover of holiday and year’s end festivities, the government of Otto Pérez Molina made an unambiguous move to defend the architects of state terror from accountability under international law. In an executive order dated December 28 and published on January 2, the Guatemalan government states that the Inter-American Court of Human Rights has no jurisdiction over human rights violations which occurred before March 9, 1987, and that the state will not recognize Court rulings or authorize Court-mandated reparations for such cases.

In 2012, the Court condemned the Guatemalan state in three cases: the 1982 Río Negro massacres, the 1984 forced disappearance of union and student activist Fernando García, and 28 disappearances between 1983-1985 documented in the military intelligence dossier known as the “Military Diary”. In broad strokes, the Court’s sentences demand that the government of Guatemala pay reparations to family members of the victims, conduct full investigations and sanction those found to have committed violations, and carry out other acts of commemoration and recognition of the state’s responsibility.

The Guatemalan government argues that its ratification of the Court’s jurisdiction in 1987 was accompanied by a signing statement recognizing its jurisdiction only for cases post-dating ratification, a common stipulation in such international agreements. The Court has recognized this distinction but has agreed to hear cases of grave human rights abuses in which violations are deemed to have occurred following to ratification, such as ongoing denial of justice and denial of the right to truth; and in cases where the violation is considered permanent, such as forced disappearance, which continues as long as the remains of the victim are undiscovered.

Further, the government indicated that reparations for cases dating after March 1987 will not exceed those authorized by the National Reparations Program (PNR). While the PNR authorizes payments of 24,000 quetzales (about US$3000) for killed or disappeared parents or siblings—with an upper limit of two victims per survivor—the Court’s reparations can exceed Q500,000 (US$63,000) per victim and are not limited to direct family members.

Faced with the swift condemnation of Guatemalan human rights organizations and civil society, as well as Human Rights Ombudsman Jorge de León (previously criticized as insufficiently independent of the government), Pérez Molina stated that the order would be “suspended” and not delivered to the Court before Monday January 7 pending analysis of its impacts on reparations and negotiations with human rights groups. Advocates for justice, meanwhile, continued to call for the order to be repealed. More than just an example of a Patriot Party administration that imposes policy and consults after the fact, the Inter-American Court gambit is a small part of a broader strategy to preserve impunity for the Guatemalan military, under cover of a facile and reactionary discourse of national sovereignty and reconciliation through forgetting.

Yo ciudadana, rechazo el acuerdo 370-2012 contra la CIDH porque es fuente de impunidad. EXIJO SU DEROGATOORIA. #DefensaSIDH

—
Iduvina Hernandez B. (@iduvina) January 04, 2013

While the Pérez Molina administration as a whole must be held responsible for this attempt to limit the reach of international human rights law, its likely intellectual author is Peace Secretariat (SEPAZ) director Antonio Arenales Forno, a lifelong political and diplomatic operative who was revealingly profiled last year by Plaza Pública. Within the government, Forno has been among the most publicly vocal opponents of attempts to hold military officials responsible for genocide and crimes against humanity, and in his appearances before the Inter-American Court for Human Rights he has repeatedly asserted the position that the government’s current executive order attempts to enforce: that the Inter-American human rights system is over-reaching its jurisdiction by hearing crimes of the past.

Forno instead advocates for a “full stop” amnesty that would halt all such investigations in the national courts, overturning the 1996 National Reconciliation Law, which includes an exception for genocide, torture, and forced disappearance. This reactionary perspective, which accuses human rights organizations of destabilizing the Peace Accords by pursuing justice, and denies that the Guatemalan military’s scorched earth counterinsurgency was genocidal, has become state policy under Otto Pérez Molina—who could himself benefit from legalized impunity in the future, as his own military and intelligence career remains under scrutiny.

Ríos Montt, charged with genocide, petitions for amnesty

The most obvious potential beneficiaries of the Patriot Party’s campaign for impunity, however, are the military officials currently facing charges of genocide and crimes against humanity: former dictator Efraín Ríos Montt and members of his military high command. Nearly a year has passed since Ríos Montt was charged for the Maya-Ixil genocide, and his defense lawyers have continued to postpone the opening of trial through various legal obstacles, including challenging to competency of the judge who initially heard the case and making repeated appeals based on the 1986 “self-amnesty” instituted by the military government of Oscar Mejía Víctores (also accused of genocide but declared medically unfit to stand trial).

Si la sentencia de la CC q permitió correr como candidato a Rios Montt fue terrible una que de amnistía seria peor. Notoriamente ilegal.

—
Alex Balsells Conde (@Alex_balsells) January 04, 2013

The Guatemalan Constitutional Court is currently contemplating the question of amnesty, and has yet to give a definitive ruling. A decision overturning the exceptions to the 1996 National Reconciliation Law could set back the campaign for justice by years—at the very least through Patriot Party government. Though Guatemalan and international law make amply clear that genocide cannot be subject to amnesty, past Constitutional Courts have not been immune to politically-influenced decisions, most notoriously in 2004 when the CC decided to allow Ríos Montt’s presidential campaign, following days of rioting by members of his FRG party and in contradiction of a Constitutional prohibition on campaigns by former dictators.

Delegations of Spanish and U.S. international human rights jurists as well as a grassroots petition campaign have been mobilized in support of survivors organizations fighting against amnesty for Ríos Montt. The Inter-American Commission for Human Rights (responsible for recommending cases to the Court) published a press release last month reiterating that any amnesty for human rights violators would be contrary to international law. When considered in the context of potentially imminent decisions by the national courts to legalize impunity, the Guatemalan government’s desire to limit the Inter-American Court becomes more logical.

Guatemala is not the only Latin American government that has challenged the jurisdiction of the Inter-American Human Rights System. In 2011, Brazil threatened to withhold funding for the Organization of American States in protest of the Inter-American Commission for Human Rights’ recommendation that the government suspend the controversial Belo Monte dam megaproject, which is fiercely opposed by local indigenous communities and environmental organizations. Earlier this year, Venezuela denounced the Inter-American Convention on Human Rights and announced its intention to withdraw from the jurisdiction of the Inter-American Court within a year, following decisions critical of its internal judicial system. While some observers on the left have uncritically repeated claims that the Inter-American Human Rights System is beholden to an imperialist OAS, these arguments have not demonstrated actual violations of the Commission’s or Court’s independence.

In reality, opposition to accountability under international law is a shared tactic of nation-states which jealously defend their ability to construct spaces of impunity and authoritarianism under national law. In its refusal to submit to basic international human rights norms, the United States is without a doubt the most flagrant and hypocritical example of this exceptionalism, but the practice should be opposed across the political spectrum. For survivors of human rights violations and communities threatened by the imposition of destructive megaprojects, international human rights law has been a means to strengthen struggles that continue on multiple fronts.

Survivors of sexual slavery testify in Guatemalan court

The international accompaniment coalition ACOGUATE reports on testimony by Q’eqchi’ women survivors of forced work and systematic rape by the Guatemalan military over a period from 1982 to 1988 at Sepur Zarco, a “recreational” military base in the Panzós region of Alta Verapaz and Izabal. Following the forced disappearance of their spouses, who had organized to demand legalization of their land, the indigenous women were forced to cook and perform chores for the soldiers, and were submitted to constant sexual abuse. During September 2012, 15 women and 4 men testified in a Guatemalan court as part of a process to collect evidence for the future identification of individuals to be tried. This is the first case both in Guatemalan and internationally in which systematic rape as a crime of war is being heard by national courts. The survivors receive support and accompaniment from the Guatemalan feminist organizations Mujeres Transformando el Mundo, Colectivo Actoras de Cambio, and the Guatemalan National Women’s Union (UNAMG), as well as the Community Studies and Psychosocial Action Team (ECAP).

Another Gerardi conspirator freed

After tonight, only one of the conspirators convicted of the 1998 assassination of human rights advocate Bishop Juan Gerardi will remain in prison. Father Mario Orantes, Gerardi’s close colleague, who was sentenced to 20 years for his role in covering up the murder, will be released on good conduct after 12 years and 10 months in prison. Following the release of Col. Byron Disrael Lima Estrada last July, only Captain Byron Lima Oliva remains incarcerated for his role in the plot against Gerardi, executed by Guatemalan military intelligence officials. Like Col. Lima, Orantes benefited from a position of power within the prison system, where he was head of the V.I.P. wing in which he was imprisoned. Also like the Limas, Orantes maintains his innocence in the case and may seek to be reassigned within the Catholic church upon leaving prison. The release of Col. Lima may have been tied to a campaign on his behalf by hard-line military intelligence officials, with whom Pérez Molina’s government would need to cement alliances; whether similar pressures were applied to secure Orantes’ release is not known.