The Guatemalan Genocide Case and the Upcoming Amnesty

By Sander Wirken – PhD candidate at the University of Amsterdam, Sander Wirken is making the documentary Burden of Peace about Guatemala’s former Attorney General Claudia Paz y Paz. Watch the embedded video to find out how you can become part of that project.

A Guatemalan trial court wrote history on 10 May 2013 when it convicted former president general Efraín Ríos Montt to 80 years imprisonment for his role in the genocide and in war crimes committed by the army. It was the very first time that a national court convicted its own former head of state for genocide. Lawyers all over the world applauded Guatemala for the apparent achievement of its national judicial system. Ten days after the conviction, however, the Constitutional Court declared that a procedural error had been committed. The procedural error in question did not amount to a breach of a constitutional right and should hence have been addressed by an Appeals Chamber and not by the Constitutional Court, as one of the dissenting opinions in the 3-2 majority decision pointed out. But the majority opined differently and the conviction was declared invalid on that technicality.

What followed was a concerted backlash to all forces that had supported the genocide trial.

The head of the UN-backed International Commission Against Impunity in Guatemala (CICIG), Costa Rican former Attorney General Francisco Dall’Anese, had urged the Guatemalan authorities not to interfere in the due course of justice in the genocide trial. He was forced to resign eight days after the Constitutional Court annulled the genocide verdict. The judge presiding over the trial, Yasmin Barrios, came under fierce public attack. The judiciary’s disciplinary body had dismissed complaints against her filed by the defense of Efraín Ríos Montt. Just a couple of days after judge Barrios received the International Women of Courage Award from the hands of Michelle Obama, the Guatemalan

Bar Association decided to suspend Judge Barrios based on those very same complaints. Although membership of the Bar Association is mandatory for everybody practicing a legal profession in Guatemala, the Bar Association clearly does not have the power to suspend judges upon complaints from defense attorneys that have been dismissed by the judiciary’s disciplinary body. The suspension was withdrawn for its flagrant violation of Guatemalan law, but the message underlying it was clear enough.

The next victim of this concerted intimidation was Attorney General Claudia Paz y Paz. As part of the Peace Accords signed in 1996, the United Nations created a Truth Commission. For that commission, Paz y Paz had interviewed hundreds of victims and witnesses of army violence. Having heard first-hand how the army had massacred entire Maya villages in the early 1980s, she was determined to support the victims in their quest for justice. The state had not accepted the Truth Commission’s conclusion that the campaign of massacring Maya villages constituted the crime of genocide against five Maya ethnic groups. The responsible generals had never been brought to trial. Paz y Paz was appointed Attorney General in December 2010. It was her presence at the head of the Prosecutor’s Office that led to the case against former president Ríos Montt making it to trial, so she too had to go.

The Constitutional Court that had already annulled the genocide verdict on dubious procedural grounds also proved willing to cooperate in the removal of Paz y Paz from the Public Prosecutor’s Office. The Court argued that Paz y Paz was not appointed for an independent four-year term, to end in December 2014, but that rather she had been appointed to complete the term of her predecessor. That predecessor was appointed on 17 May 2010 but turned out to be so corrupt that the Constitutional Court annulled his appointment on 11 June 2010. With the appointment declared null and void, a new procedure was set in place that resulted in the appointment of Claudia Paz y Paz. The presidential appointment decision explicitly states that she is appointed for the period of December 2010 until December 2014. No reference whatsoever is made in that decree to her completing the term of the person appointed on 17 May 2010, as that appointment had ceased to have any legal effects. After the genocide trial, the Constitutional Court opined differently however and declared that the president had overstepped his powers and that Paz y Paz’s term is to end on 17 May 2014.

She applied for a second term. The deans of the law faculties of all of the country’s universities have a seat in the nomination commission that is to nominate six candidates for the president to choose from. Since that system of nomination commissions had been put in place, seven new private universities have been created, all with a law faculty, some without even a single student, but all with a seat in the nomination commission. Of the 14 members, ten are deans of law faculties of private universities. Notwithstanding the spectacular improvements that had occurred within the Public Prosecutor’s Office on Paz y Paz’s watch, the commission decided not to nominate her.

Rios Montt

Efraín Ríos Montt

To add insult to injury, a week after the nomination commission refused to nominate Claudia Paz y Paz, the Guatemalan Congress voted to approve a resolution in which it declares that genocide has not occurred in Guatemala. Congress thereby joined president Otto Pérez Molina, a former general elected president in November 2011, in denying genocide. Human rights groups and constitutional lawyers who observed that the genocide trial against Ríos Montt is scheduled to resume in January 2015 fiercely criticized Congress’ resolution.

That the genocide trial will resume as scheduled seems improbable. Ríos Montt’s defense attorneys filed a petition that application of the 1986 amnesty law in favor of their client be considered. The Constitutional Court ordered the Supreme Court to make sure the petition is considered. All members of the First Appeals Chamber refused on diverse grounds. Subsequently, the order to consider the petition was sent to the Second Appeals Chamber, all members of which also refused. The members of the High Risk Appeals Chamber refused on 12 May 2014, making for a total of 93 judges who have refused to rule on the petition to consider application of the 1986 amnesty law in favor of Ríos Montt. The Third and the Fourth Appeals Chambers are next to be called upon to resolve the legal limbo. But no judge in the country is particularly eager to rule on this issue. A ruling suggesting that the crime of genocide may be amnestied would be evidently contrary to international law and would be fiercely criticized as such, whilst a ruling against the petition could have serious professional consequences for its author.

It surely does not help in that context that all Supreme Court magistrates and Appeals Chambers judges are up for re-election at the end of the year. In the nomination commission for those elections, the Bar Association that suspended Judge Barrios and the private university law faculty deans that voted against Attorney General Paz y Paz together have a majority. Ruling on the amnesty petition, either in favor or against, would severely complicate re-election for any magistrate involved. At this point, refusing to consider the petition therefore appears to be the safest choice.

The forces opposing the genocide trial are now having the upper hand. Claudia Paz y Paz is no longer Attorney General and her successor is not expected to push for the case to be brought to trial. Judge Barrios is still an active judge but her re-election at the end of the year seems uncertain. It is very clear that the president, Congress, the Constitutional Court, the Bar Association and the nomination commission are all united in their opposition to the genocide trial. If no judge rules favorably on the petition to apply the 1986 amnesty law to the case of Efraín Ríos Montt, Congress could enact new amnesty legislation. Such legislation would clearly go against the obligations of the state of Guatemala under the American Convention for Human Rights. Withdrawal of Guatemala from the Inter-American human rights system cannot be excluded.

Against this grim picture, there are two small bright spots that provide a ray of hope. The first is the continued presence of the CICIG, now under the leadership of former Colombian magistrate Iván Velásquez. The mandate of CICIG ends in September 2015. Hopefully, under Velásquez, the Commission will succeed in guaranteeing a minimum level of judicial independence in Guatemala. The second is the legacy of Claudia Paz y Paz. During her tenure, she has obtained spectacular results, not only against former president Ríos Montt on genocide charges but also against former president Portillo on corruption charges (he was acquitted by a Guatemalan judge but subsequently extradited to the United States; that the case made it to trial in the first place and that his extradition was approved were unprecedented breakthroughs) and against countless high state officials and drug kingpins. Previously, cases would not make it to trial in the first place. Thanks to her, cases did make it to trial, and those opposing justice had to come out into the open to obstruct the due course of justice visible to all. Claudia Paz y Paz has proven that Guatemala can change and her legacy will inspire future leaders to pursue the process of change that lies ahead for Guatemala.