Spain Steps Down: Universal Jurisdiction and the Guatemalan Genocide Cases

  Source: NACLA

The announcement on June 25 that Spain will begin to limit its application of universal jurisdiction garnered no more than a humble blip in international media coverage. The principle, which asserts that certain crimes are so egregious that they are an affront to all humanity and therefore prosecutable by any nation, is at the center of fierce philosophical debate in international law. But for survivors of genocide in Guatemala, universal jurisdiction has represented something much more tangible—an important avenue for justice against the lingering impunity left in the wake Latin America’s dirty wars.

Spain’s lower house of Parliament voted overwhelmingly in favor of narrowing universal jurisdiction so that crimes committed outside of Spain may only be prosecuted if Spanish citizens are affected.

The six judges that make up Spain’s Audencia Nacional are currently handling thirteen diverse cases from all over the world, including several from Latin America. Spain has assured the human rights community that the change will not affect cases under investigation or those currently being tried.

Although the judges have been hailed by rights activists, their recent high-profile investigations into rights abuses by American, Israeli and Chinese government officials have created a diplomatic headache for Spain’s politicians, who pressed Parliament to pass the resolution.

While Washington has admitted to quietly pressuring the Spanish government to drop the investigations into allegations of U.S. torture at Guantanamo, Israel was outspoken in its criticism of the court’s decision to investigate a claim that Israeli forces had committed war crimes in Gaza in 2002. The investigation has since been dropped.

Many believe that China has been the biggest source of pressure, warning that continued investigations into the Tibet crackdowns could damage bilateral relations. With one of the weaker economies in Europe, Spain is no doubt wary of falling out with one of the world’s rising economic powerhouses.

Spain catapulted itself into the center of the human rights movement when it invoked universal jurisdiction to order the arrest in London of Augusto Pinochet in 1998, and the country has since focused much attention on Latin America. Although many nations, including the United States, have nominally adopted the principle, none have used it to actively pursue so many high-profile cases.

The effectiveness of Spain’s involvement in Latin America is difficult to measure. To date, it has made just one clearly successful conviction against an Argentine military officer for his role in disappearances during the dirty war.

Spain’s involvement has, however, lent legitimacy to the demands of victims groups. This has been particularly true in Guatemala, where an impunity rate of 98% renders the justice system highly ineffective—and often dangerous for those making complaints—because many of the leaders who masterminded the decades of violence are still in power. The UN-backed Commission for Historical Clarification (CEH) found that during Guatemala’s 36-year war that officially ended in 1996, state security forces and allied paramilitary groups were responsible for 93% of the 200,000 killed and disappeared. After discovering that 83% of the victims were indigenous Mayans, the CEH declared that the violence constituted genocide.

A recent statement issued by the Inter-American Commission on Human Rights describes Guatemala’s justice system as hobbled by crumbling infrastructure and widespread corruption. The starkest evidence of Guatemalan impunity, however, is the fact that Efraín Ríos Montt, the former President who presided over one of the deadliest periods of conflict, was elected President of Congress in 2000 and came in fourth in the Presidential elections of 2004.

It was for these reasons that in 1999 the Rigoberta Menchù Tum Foundation took its case against Ríos Montt and seven other former government officials to the Spanish National Court. The foundation charged the men with terrorism, genocide and torture committed as part of systematic violence against Guatemala’s indigenous Maya. In 2005, Spain’s highest court established jurisdiction in the case and began investigating.

In February of 2008, 17 survivors of the genocide traveled to Spain to provide heart-wrenching testimony in the case. Amanda Kistler, a human rights observer with the Network In Solidarity with the People of Guatemala (NISGUA) who accompanied several of the survivors upon their return, noted in an interview with NACLA that one survivor said she "cried bitter tears while giving her testimony and noticed when she finished that everyone else in the courtroom—including Judge [Santiago] Pedraz—were also crying bitter tears."

The effect of Spain’s involvement has been more than symbolic. Although Guatemala has defied the international arrest warrants Spain has issued for several defendants in the case, Guatemalan courts have begun to cooperate by collecting additional testimony to be passed on to the Spanish judge. In April 2008, a survivor from Rabinal delivered to a packed courtroom the first public testimony about the Mayan genocide ever to be heard on Guatemalan soil.

The case in Spain has also pressured the army to declassify its military documents—a crucial step towards greater transparency. In February of this year, official documents from the U.S. and Guatemalan governments about the deadly "scorched-earth policy" of the 1980s were submitted as evidence in the case. Kate Doyle, Senior Analyst at the National Security Archive, who provided expert testimony in the case, stated, "…Guatemala’s Armed Forces have never been called to account for their actions. The introduction of the Army’s own records as evidence in the genocide case in Spain represents the first time the military’s role has been described in a legal proceeding through its own strategic, planning, and operational files."

Given this groundbreaking, albeit slow progress, activists have expressed concern for the effect that Spain’s recent decision will have on what is sure to be a long road to justice for Guatemalan citizens. Although there are other avenues available—human rights cases are currently being investigated by Guatemala’s national courts and the Inter-American Court of Human Rights, tangible results from these routes often remains elusive.

For now, the victory for human rights in Guatemala may be measured by the increasing inclusion of indigenous voices in the re-telling of official history. As Carrie Stengel, a coordinator at NISGUA, explained to NACLA, "The genocide cases…form part of broader efforts to reconstruct the historical memory of individuals, families, and communities, [and] are seen by many as essential steps in any healing and reconciliation process. Because of the long history of repression in Guatemala, as well as the rising attacks against human rights defenders today, speaking out against crimes committed during the war remains a difficult and risky endeavor. Many survivors have told me that even just the simple act of telling their story can be empowering, especially if it is part of a collective process."