Guatemala: Constitutional Court Verdict Exemplifies Impunity

January 23, 2008 Martha Fonesca, Translation by Kimberly Kern Guatemala 0

Last month, the Constitutional Court’s verdict nullified a former ruling calling for the detention and extradition of retired Generals Ángel Aníbal Guevara Rodríguez and Pedro García Arredondo, and demands that the generals be set free.  According Guatemalan human rights organizations and the families of the victims of massacres that occurred between 1982 and 1983, the verdict makes justice into a joke.

Last month, the national paper, Prensa Libre printed the Constitutional Court’s (CC) verdict regarding the detention and extradition of retired Generals Ángel Aníbal Guevara Rodríguez and Pedro García Arredondo.  This verdict nullifies the decision formerly made by the judges of the Fifth Court of Appeals, and demands that the two generals be set free. These generals were detained after a long process of legal extradition procedures by Spanish judges who believe that international crimes against human rights were committed by several high ranking officials, including José Efraín Ríos Montt, who served as president of Guatemala. According to the court, the extraditions issued by Spain are null and void because they come from a country that does not have legal jurisdiction in Guatemala.

Legal experts confirm that the verdict contains arbitrary legal jargon that is not based on the law. They also argue that it violates international conventions and statutes that the state of Guatemala has signed, such as the Convention of the Prevention and Sanction of the Crime of Genocide and the Convention against Torture which establish that the state must grant extradition when dealing with crimes of this nature.

Experts have also observed the refusal of the court to compete with Spain in the genocide case arguing that Guatemala, as an independent and sovereign nation, is capable of achieving justice in the Guatemalan court system. Moreover, the court alluded to the fact that Spain was present as a witness in the signing of the Peace Accords and considers itself part of the reconciliation process. Therefore, it cannot be a part of this other legal process. With these contradictory arguments, the court did not address that the jurisdiction of Spain in this case is protected by the Principle of Universal Jurisdiction. This principle permits and obliges foreign nations to legally act against states that have committed international crimes like genocide, torture and crimes of war in their own territory and against their own people.

The Principle of Universal Jurisdiction does not recognize territory or immunity when prosecuting crimes that are internationally known. Genocide and crimes against humanity are crimes of such a large magnitude that they constitute a danger to every country in the world. This emphasizes that this principle has a massive legal force in the arena of international human rights. Universal Jurisdiction has been applied before in cases of genocide, like the Spanish case against Argentine ex-military and General Pinochet.

The verdict of the CC has changed the character of the crimes that were committed by the ex-militaries. Now they are not profiled as crimes of genocide but general political crimes. The court has used arguments to absolve the crimes of the accused, alluding to the fact that their crimes have no connection to the extradition treaty between Guatemala and Spain. Article 3.41 and Article 5 of this treaty say that it is not possible to extradite for general political crimes. Undoubtedly, the court changed the criminal profile with the intention of revoking the detention and extradition orders. Again, they neglect to address international human rights conventions which deny that crimes like the ones committed in Guatemala can be transformed into political crimes. 

The verdict is very serious and cannot be appealed because the Constitutional Court is the last judicial court of appeals in Guatemala. The situation complicates a case that has already been crawling through an inadequate judicial system. However, according to legal sources printed by the Prensa Libre, the Spanish judge, Santiago Pedraz, will continue to investigate this case. According to him, the verdict will not affect the ability of Spain to prosecute genocide and the arrest warrants continue to stand on the international level.

According to an association of Guatemalan human rights organizations, Genocide Never Again, and for the families of the victims of massacres that occurred between 1982 and 1983, the period in which General José Efraín Ríos Montt was president and 250,000 people were assassinated and 45,000 people disappeared, the verdict makes justice a joke. Despite the existing evidence and testimonies in this case which incriminate these military officials, the court has resolved to acquit them.

The verdict has been rejected by diverse sectors of Guatemalan society, indigenous groups, national and international human rights organizations like the Center for Legal Action of Human Rights (CALDH), the International Federation of Human Rights (FIDH) and the Initiative of Copenhagen for Mexico and Central America (CIFCA) and by the national and international methods of communication who published the verdict. According to these organizations, instead of strengthening the justice and democracy systems in the country, they are contributing to the consolidation of the largest problem in Guatemala- impunity.