Editor’s Note: This commentary first appeared on the Open Society Justice Initiative’s website focusing on the trial of Efraín Ríos Montt and Mauricio Rodriguez Sanchez.
The recent conclusion of the genocide trial against the former de facto leader of Guatemala, General José Efraín Ríos Montt, and the subsequent overturning of his conviction raises significant and enormously challenging questions about rule of law and politicization of the justice system in Guatemala. But beyond the domestic implications, the proceedings may renew the bitter debate underway about the wider Inter-American human rights system at this week’s Organization of American States (OAS) General Assembly meeting, aptly held in La Antigua, Guatemala.
The trial of Ríos Montt, de facto president from 1982-1983, represents the first time a national judiciary has tried a former head of state for the crime of genocide in his home country. It is a testament not only to the brave Ixil Maya witnesses who testified, the tenacious and committed Attorney General Claudia Paz y Paz, and domestic and international pressure from human rights groups advocating on behalf of the victims, but also to the importance of complementarity between Guatemala’s judicial system and international human rights mechanisms.
That the national judicial system handled such a difficult case suggests that Guatemala’s democratic architecture is stronger than assumed. It is also a reminder that the international rules of justice allocate responsibility for prosecuting crimes like those committed during Guatemala’s darkest days to the level closest to where the crimes occurred – the national level – rather than kicking the case up to the international level. When national authorities fail to carry out that responsibility, however, international actors can step in to address injustice. For example, other cases of mass atrocities committed during the Guatemalan civil war from 1960-1996 have been heard successfully at foreign and international courts, sometimes referred to as courts of last resort, revealing a complex but symbiotic relationship among the various levels of adjudication.
Around the same time private prosecutors began building the domestic prosecution against Ríos Montt in the early 2000’s, a case against him and seven other high-ranking Guatemalan officials was brought before the Spanish National Court by Mayan activist Rigoberta Menchu. The charges included international crimes of torture, genocide, illegal detention and state-sponsored terrorism, acts which Spanish law consider so heinous as to demand universal jurisdiction regardless of where the crime occurred. Those involved in acquiring forensic and archival evidence, however, noted a distinct lack of cross-fertilization between the two tracks in the early years, stemming from disagreement over where these crimes should be addressed. This eventually changed as advocates realized both types of trials complement one another. This led some witnesses and experts who first appeared in the Spanish trial to also testify in the Guatemalan trial, strengthening the case against Ríos Montt and his former director of military intelligence, José Mauricio Rodriguez Sanchez.
This sort of behind-the-scenes collaboration is only the beginning of the possibilities for cooperation between national and international courts on human rights trials. The Inter-American Court of Human Rights, for example, buttresses national justice systems by identifying and raising awareness about barriers to justice, ordering states to conduct investigations, and pressuring powerful domestic actors to demand more focused action to resolve outstanding cases of injustice. Convictions at the Inter-American Court in the massacres at Dos Erres, Plan de Sánchez, and Rio Negro, and the Diario Militar cases over the last decade reversed the history of impunity connected to these mass atrocities and paved the way for the architects of violence to be held accountable by the national judiciary in Guatemala.
This supra-national influence on domestic matters is not always appreciated. In December 2012, President Otto Pérez Molina’s government adopted an executive resolution meant to restrict the Inter-American Court’s jurisdiction to crimes committed after 1987, the year Guatemala first recognized its jurisdiction. This would have precluded victims of any crimes committed during the first 27 years of the internal conflict from seeking justice at the regional level, thereby extending impunity and limiting opportunities for complementarity. Fortunately, under significant pressure from domestic and international human rights defenders, President Pérez Molina announced the derogation of the resolution just one month later, reaffirming Guatemala’s recognition of the Inter-American Court’s jurisdiction.
Nevertheless, this attempt to limit the Court’s jurisdiction strikes a chord with a regional movement led by the ALBA countries (primarily Bolivia, Venezuela, Ecuador and Nicaragua) that seeks to curtail the independence of the Inter-American human rights system. This year’s March special session of the OAS General Assembly brought a two-year debate on reforming the Inter-American Commission on Human Rights to an uneasy end that lacked consensus or true resolution and failed to strengthen the system. Whether this dialogue will be reopened at June’s regular session remains to be seen, but any rehashing of ploys to weaken or restrict the Inter-American human rights system should be struck down in the strongest of terms.
The future of the Ríos Montt trial is clouded with uncertainty. What is clear is that the rule of law is still precarious in some Latin American countries and the Inter-American human rights system has the ability and responsibility to support its deep entrenchment. Trials like that of Ríos Montt can bring stability and justice to Guatemala and strengthen its democracy by reversing the history of impunity enjoyed by its highest leaders. Similar cases have also been heard by national courts in Argentina, Peru, and Chile, blazing a new path toward national compliance with international human rights norms. The arrest of General Augusto Pinochet in London, for example, spurred an important effort by Chile’s national authorities to detain and prosecute the former dictator in Chile, rather than overseas, thereby strengthening the credibility of its own judiciary.
As the Ríos Montt and other similar cases against soldiers and high-level officials demonstrate, national, foreign and international courts can positively reinforce one another, thereby supporting their shared goals of enforcing justice, reducing impunity, and promoting and protecting human rights.
We're at an impasse where we're not going to give North Korea what they want, and the North Koreans are not giving us what we want. [Each week that passes without progress] really lays bare the anemic nature [of the declaration President Trump and Kim Jong-un made in June in Singapore].