Truth and memory on trial
On 10 May 2013, a Guatemalan tribunal sentenced former army general Efraín Ríos Montt to 80 years in prison for genocide and crimes against humanity committed 30 years earlier during the country’s internal armed conflict. Ríos Montt, Guatemala’s de facto president from March 1982 until August 1983, became the first former head of state anywhere to be tried and sentenced for core international crimes in a domestic court in his home country. For thousands of victims and their families, for human rights defenders at home and abroad, and for all those seeking accountability for the atrocious crimes committed during the Guatemalan conflict, that sentence was an unprecedented achievement, a symbol of justice in a country uncomfortably used to impunity.
The impression of justice achieved, however, was short-lived. Only ten days later, the Guatemalan Constitutional Court nullified the sentence for Ríos Montt based on what it considered to be procedural failures of the right to due process (FIDH 2013).1 An attempt to restart the trial in early 2015 was aborted when the defence questioned the neutrality of the new presiding judge. The latest attempt to restart the trial in July 2015 was also intrerrupted.
These dramatic events underscore the elusiveness of judicial accountability in Guatemala for crimes committed during the internal armed conflict.
Almost 20 years have passed since the signing of the peace accords that ended the armed conflict between the government and the armed insurgency led by the Guatemalan National Revolutionary Unity (Unidad Revolucionaria Nacional Guatemalteca, URNG).2 The accords, signed in 1996, highlighted democracy and inclusion as guiding principles for the future of Guatemala. Today, it is important to evaluate both the degree to which the accords have been implemented and the transformative potential they held and still hold for Guatemalan society. This can be done by examining the various initiatives aimed at consolidating, opposing, or neutralising the commitments in the accords. These initiatives incorporate legal and political processes, originating both from the state and civil society, with local as well as international support.
Prominent among these initiatives are transitional justice mechanisms aimed at achieving either stability for the peace process or accountability for past crimes. This chapter examines the implementation of these mechanisms, including truth commissions, amnesty, prosecutions, and reparations, in order to assess what role transitional justice may have played in fulfilling the accountability agenda embodied in the peace accords. The chapter starts with a brief account of the political context leading up to the accords and a discussion of the ways in which they did or did not incorporate accountability for past human rights violations. The chapter then considers each transitional justice mechanism separately, although their implementation processes, as we will see, are closely interrelated.
The political negotiation of peace, and what came out of it
Guatemala’s violent internal conflict was one of the longest in Latin America, lasting for 36 years. At the start of the conflict in 1960, the country was characterised by deep structural inequalities along class and ethnic lines. Economic and political power was concentrated in a landed elite, while the large majority of the population – Ladinos and, especially, indigenous Maya – suffered exclusion and discrimination (CEH 1999). Formally a constitutional democracy, Guatemala was ruled by alternating elected and de facto military governments throughout the extended armed conflict. Against the global backdrop of the Cold War, social and popular demands were seen by most of these governments, civilian and military alike, as part of a communist threat.3
In the course of the conflict, the Guatemalan people suffered brutal cycles of violence, most notably between 1966 and 1968 and again between 1981 and 1983. These periods were characterised by widespread government repression and a violent counter-insurgency strategy (Falla 1995). During the first cycle, cities and rural areas in the eastern part of Guatemala were most affected. The second cycle was characterised by continuous violence in the urban areas along with a strategic shift of military operations to the Western Highlands, territories densely populated by indigenous Maya. Scorched-earth tactics were systematically applied by the military in hundreds of Mayan villages, their populations massacred or forced to flee. The conflict left over 200,000 people dead and tens of thousands disappeared, with another 1 million people displaced from their homes. Most of the victims were rural and of indigenous Mayan origin (CEH 1999). This deeply scarred Guatemalan society as a whole, altering social relations and affecting social, ethnic, cultural, and political organisation in many ways. While the impact was greatest in the areas where the counter-insurgency doctrine was applied militarily on the ground, the conflict reshaped state institutions as a whole over four decades, intensifying repressive features and increasing existing tensions in state-society relations.
On 29 December 1996, the signing of a final peace accord, the Agreement on a Firm and Lasting Peace, officially ended the internal armed conflict. The signing capped six years of direct negotiations between the Guatemalan government and the armed insurgency, represented by the URNG, under the auspices of the United Nations. The formal starting point for the final accord was the Basic Agreement for the Search for Peace by Political Means, known as the Oslo agreement, of 29 March 1990. From 1994 onward, the peace talks were facilitated by MINUGUA – the United Nations Mission for the Verification of Human Rights and of Compliance with the Commitments of the Comprehensive Agreement on Human Rights in Guatemala. Even after the conclusion of the long and difficult negotiations, however, there remained serious questions about the prospects for a deep institutional, political, and social transformation that would address the structural causes of the armed conflict.
When the peace negotiations started in 1990, both the government and the URNG found themselves in vulnerable positions, allowing the international community to bring pressure to advance the negotiations. Government forces enjoyed significant military advantage, but their brutal counter-insurgency practices had discredited them before significant sectors of national and international public opinion (Vela Castañeda 2011). The URNG was in some disarray, with internal splits over class and ethnicity, divisions accentuated by and perhaps contributing to its military weaknesses. Discontent within the rank and file of the insurgency led to ruptures with the guerrilla high command. Nonetheless, the URNG retained links to the repressed but resilient social and popular movements in the country.4
In addition, the insurgency gradually lost popular support in the course of the negotiations, in part because the accords it signed were widely perceived as weak in their response to popular demands for justice. One was the June 1994 agreement that set the terms for the establishment of the Commission for Historical Clarification (Comisión para el Esclarecimiento Histórico, CEH). The accord generated disillusionment within social movements and the human rights sector for its provision that ‘the Commission shall not attribute responsibility to any individual in its work, recommendations and report nor shall these have any judicial aim or effect’ (Operation, para. III, emphasis added).5 This prefigured the limited possibilities for criminal accountability in the future.6
Two other disputed accords were the Agreement on Identity and Rights of Indigenous Peoples (March 1995) and the Agreement on Socio-economic Aspects of the Agrarian Situation (May 1996). With respect to the former, indigenous organisations criticised the fact that central issues such as the right to land and territory were not included. Cojtí Cuxil (2006) argues that the accord was positive insofar as it called for the state to recognise its responsibility for historic discrimination against indigenous peoples. However, negotiators ignored many indigenous demands, including the crucial issue of territorial autonomy. In subsequent years, measures to change the situation of indigenous people would be deemed insufficient, discontinuous, marginal, and purely symbolic (Cojtí Cuxil 2006). Regarding the agreement on agrarian issues, the key issue of land reform – previously a main item on the URNG agenda – was among those that disappeared from the final text. The need for state intervention to remedy the country’s highly inequitable land distribution gave way to market-led land reform.
After signing of the final accord in 1996, the insurgency was transformed into a political party, but it failed to develop the strength or secure sufficient alliances to enable it to successfully bring pressure for compliance with the commitments set out in the accords. In the post-conflict period, the URNG was socially and politically weak, its electoral support gradually waning. In the first post-conflict election, in 1999, the URNG, in coalition with other political organisations, received approximately 271,000 votes, or 12.3 per cent. By the 2011 elections, the URNG’s support had shrunk to only 2.8 per cent of the vote.7
Furthermore, post-conflict governments have shown little interest in seriously supporting the accords in their policy-making, whether because of weakness or indifference or both. The capacity of the state apparatus – with the exception of the army – has been gradually reduced in accordance with neo-liberal tenets, further limiting the possibilities for implementing the peace commitments.8 It took nine years to pass the Framework Law on the Peace Agreements (Decree 52–2005), which recognised the accords as formal state commitments and established the National Council for Implementation of the Peace Accords (Consejo Nacional para el Cumplimiento de los Acuerdos de Paz, CNAP). Initially considered innovative because of its representative composition, CNAP has kept a very low profile since its creation.9
Since the signing of the accords, a new institutional framework has gradually been created in Guatemala, including numerous joint committees, new legislation, and the implementation of several transitional justice mechanisms. These have had varying degrees of success. Holding elections free of fraudulent practices is more common than before: since 1996, Guatemala has had five democratically elected presidents.10 Respect for civil and political rights has improved when compared to the worst years of the armed conflict. Yet effective and democratic rule of law in Guatemala is still fragile (Schirmer 1999). Social movements and civic organisations continue to denounce violations of fundamental human rights targeted against activists and the population more generally. There has also been a noticeable lag in efforts to guarantee economic, social, and cultural rights. Community and indigenous leaders face enormous difficulties in advancing their claims to territory and natural resources, among other core issues.
On the surface, the process of building formal democratic institutions is advancing. However, as Guy Hermet (2008) cautions, when we speak of democracy, there is frequent confusion between scope and depth. Social, political, economic, and cultural dynamics continue to produce the kinds of inequalities and exclusions that were recognised as the root cause of the armed conflict. This reality is exacerbated by the international economic crisis and by the deterioration of the country’s economy, together with the post-conflict surge of gangs, organised crime, and drug trafficking. These illicit activities pose a challenge to the effective presence of the state across the national territory.
Sectors of the power elite and the national political class have repeatedly refused to recognise the need for profound structural reforms to underpin the development of democratic social relations. The long period of armed conflict, preceded by a series of military and civilian dictatorships, impeded the emergence of a democratic culture among broad sectors of the population. Elite intransigence helps explain, in part, apparent citizen disinterest or disenchantment in the post-conflict period, as well as the resurgence of discourse that recalls the central postulates of the Cold War.11 It is, therefore, not surprising that high levels of impunity and corruption persist in the Guatemalan judicial system, along with the use of violence and coercion against human rights advocates, victims, and survivors (OHCHR 2014).
Truth: the struggles for historical memory
The Guatemalan internal armed conflict has been the subject of much debate. There is no social consensus on what the conflict was about, on the roles of different social and political actors (armed and unarmed), or on how to address the legacy of the past. Throughout the conflict, repressive state measures limited the space for the human rights sector in Guatemala, which nevertheless found much-needed support in Catholic and international human rights networks. In the post-conflict period, the debate on the truth of what happened was ignited by the report, Guatemala: Nunca más (Guatemala: Never Again), produced by the Catholic Church’s Recovery of Historical Memory Project (Proyecto Interdiocesano de Recuperación de la Memoria Histórica, REMHI). The second impetus to this debate was the official truth commission report, Guatemala: Memoria del silencio (Guatemala: Memory of Silence), produced by the Commission for Historical Clarification under the terms of the Oslo agreement. REMHI made its report public on 24 April 1998; the CEH report was issued the following year, on 25 February 1999.
The idea behind the REMHI project began to take shape when the agreement to establish the CEH was signed in 1994. Many social movements and human rights organisations in Guatemala regarded that agreement with dismay, feeling that it placed too many limits on the CEH’s mandate and on the assignment of criminal responsibility for violations committed during the armed conflict. It was in this context that Monsignor Juan Gerardi, a Catholic bishop who was acting director of the Human Rights Office of the Archbishopric of Guatemala, proposed a Church-sponsored truth initiative. It would draw on the experiences of Church interventions in other countries, such as El Salvador, to recover historical truth as a contribution to the peace process.12 The aim was to produce a report that would set a high standard for quality and depth that the CEH would then be pressured to meet.
These two initiatives differed in their methodologies and operational approach, as well as in the resources available to them in terms of time, budget, and personnel. The REMHI project was conducted over three years by 600–800 bilingual facilitators who collected testimonies from people who had experienced the armed conflict. Almost 6,500 testimonies were recorded and systematised, providing the basis for a four-volume report that focused on the victims and impacts of violence, the types of violence, and the historical context surrounding the conflict. The CEH project, on the other hand, was sponsored by the United Nations and headed by three commissioners, two of them Guatemalans and one non-Guatemalan. It operated between July 1997 and February 1999, with a professional staff of 100–200 people.
Despite their different contexts and mandates, both truth commissions came to similar conclusions about the armed conflict. Briefly stated, the reports conclude that at least 200,000 people died as a result of the conflict, and 40,000 to 50,000 were forcibly disappeared (CEH 1999; REMHI 1998). Both reports deemed the state to be responsible for the majority of fatal violence committed during the conflict, including numerous massacres and criminal acts targeted mainly against the indigenous population. The CEH report states clearly that the Guatemalan state carried out genocidal practices (actos de genocidio) as part of counter-insurgency campaigns against indigenous Mayan populations in a number of districts (CEH 1999, para. 3601).
The most shocking response to the REMHI report came two days after its release, when Bishop Gerardi was assassinated in his home in Guatemala City. The murder remains unsolved, but has been interpreted as a warning against human rights advocacy (Goldman 2007).
In the view of the Guatemalan human rights sector, the government’s collaboration with the CEH during the investigation phase undermined the legitimacy and credibility of the upcoming report as an official document that emanated from the peace negotiations.13 Less than a year after the murder of Bishop Gerardi, the CEH submitted its report to the government and the public in a solemn ceremony during which Gerardi’s efforts, and the significant contribution made by the REMHI report, were specifically acknowledged. However, about a week later, the government took out an advertisement in the print media disputing that the CEH report, Guatemala: Memoria del silencio, was the official story of the internal armed conflict.
Thus, while setting the record straight in some respects, the REMHI and CEH reports also initiated a struggle over the official memory of the internal armed conflict in Guatemala. This struggle involves, on one hand, relatives’ and victims’ organisations, human rights organisations, and other civil society actors,14 and on the other hand, the military and related support groups. Among those who have weighed in with their perspectives are former members of the armed insurgency (Macías 1997; Palma Lau 2010; Porras Castejón 2011), former military officers (Gramajo 1995; Mérida 2010; Ventura Arellano 2012), scholars (Falla 1993; Rosada-Granados 1999; Sabino 2008; Torres-Rivas 2011), and journalists.
Over the past five years, the struggle over historical memory has intensified, and the polarisation of views has become evident in the country’s media. In May 2012, the independent Forensic Anthropology Foundation of Guatemala (Fundación de Antropología Forense de Guatemala, FAFG) unearthed the largest mass grave found to date, containing the remains of over 250 people, at a former military base in Cobán, Alta Verapaz. After the discovery, media commentators argued that the state should take responsibility for a systematic exhumations policy, as the country had stubbornly refused to face up to what happened during the conflict (Gamazo 2012; Font 2012). Articles, columns, and readers’ letters followed, taking positions in favour of and against trials involving military personnel.15
By September 2012, a pro-military support organisation had been formed. The Association of Relatives and Friends Acting in Solidarity with the Military, known as Familia, held a demonstration in support of officers and generals either charged with, or on trial for, war-era crimes. At the rally, Zury Ríos Sosa, daughter of Ríos Montt, coined a phrase now often used in this debate when she claimed that ‘a soldier should not apologize’.16 Pro-military slogans and placards, including one reading ‘There was no genocide in Guatemala’ also appeared outside the Ríos Montt genocide trial in 2013. Memoirs giving a self-justifying account of the conflict from an unrepentant military perspective began to appear (AVEMILGUA 2013). Despite the solid evidence of grave human rights violations presented by both the REMHI and CEH reports, and the fact that the CEH spoke explicitly of genocide, the issue of whether the armed forces’ actions against indigenous communities during the conflict constituted attempted genocide remains in dispute.
At the local level, the reconstruction of histories and memories of the armed conflict has taken place since the 1990s in a variety of forms, ranging from local exhumation initiatives to collective memory projects (Flores 2001; Huet 2003, 2008; Paniagua, Mezquita, and Martínez 2012). The latter have taken a more formalised shape with the introduction by local communities of ‘grievance memorials’ (memoriales de agravio) as part of the process towards collective reparations implemented by the National Reparations Programme (Programa Nacional de Resarcimiento, PNR). The first grievance memorial was presented to the PNR in 2008 by the community of Cocop, the first Maya Ixil community to suffer a massacre, in 1981. This community was thus also the first to receive collective reparations. However, the community’s expectation of full collective reparations remained unfulfilled, as the PNR ceased activities there the same year (CAFCA 2010, 5).
Other rural communities affected by the armed conflict have also taken steps to meticulously organise information, determining facts and dates and setting up detailed lists of victims and material damages. To date, over 70 grievance memorials have been developed by local victims’ organisations in the Quiché region and the Ixil Triangle, both among the areas most affected by state violence during the conflict. Communities request comprehensive forms of reparations from the state, including collective, symbolic, and individual measures.17
The Guatemalan experience with amnesty for crimes committed during the armed conflict is based on the National Reconciliation Law (Decree 145–96 of 27 December 1996), whose stated aim was to promote reconciliation among the parties to the armed conflict. It decreed the extinction of criminal liability of direct authors, accomplices, and accessories, whether state or non-state actors, for political and related crimes committed during the armed conflict and until 1996. A notable aspect of this amnesty law is that it does not include core international crimes. Article 8 expressly states that ‘the extinction of criminal liability referred to in this Act shall not apply to crimes of genocide, torture and enforced disappearance, as well as those crimes that are not subject to the extinction of criminal liability in accordance with domestic law or international treaties ratified by Guatemala’ (our translation).
Guatemala’s amnesty law, therefore, is unusual among the cases considered in this book in that it operates within the parameters of international human rights law and humanitarian law. This may be due to the influence of the United Nations during the peace process, as well as the timing of the process itself. By the mid-1990s, the diffusion of international norms regarding accountability for core crimes had started to make blanket amnesties unacceptable to the international community. Given the restrictions established by the amnesty law, legal challenges from Guatemalan victims’ and human rights organisations have focused on cases related to the crimes of genocide, torture, and enforced disappearance. This will be addressed in the section on trials below.
Guatemala’s various administrations since 1996 have responded unevenly to the state’s commitments under the peace agreements. Although new institutions such as the Ombudsman’s Office and the Peace Secretariat were established, along with some new public policies, these did not add up to an integrated system capable of building peace and democracy. Many of the agencies and administrative bodies created in accordance with the agreement on the time frame and implementation of the peace accords were established by executive decree rather than through the legislative process.18 In Guatemala, this implies less institutional strength in terms of continuity and resources. During his term, President Otto Pérez Molina, a former military general and leader of the Patriotic Party (Partido Patriota),19 proposed changes to the institutions linked to the peace accords, with the stated objective of improving their functioning. There is suspicion among human rights organisations, however, that this may be a veiled attempt at regressive reengineering of these institutions.
Contributing to this climate is a proposal from a senior official to declare a new amnesty law as a prerequisite for a full investigation of what occurred during the armed conflict.20 The justification given is that many of those who were involved in atrocities are prepared to make revelations about their past actions but are inhibited from doing so by the possibility of facing criminal prosecution. In other words, this logic revives the ‘truth for amnesty’ or ‘truth for impunity’ formula that was explicitly rejected at the end of the armed conflict.
Trials: strategic litigation or doing what is possible?
In Guatemala’s dysfunctional institutional environment, the road to legal accountability involving criminal prosecutions for past human rights violations has been discontinuous and full of obstacles. Clear pro-impunity tendencies are evident within the justice system. Nevertheless, Guatemala offers examples of the investigation and resolution, with convictions, of a number of emblematic cases.21 The role of the Inter-American Court of Human Rights has been vital in unblocking some obstacles at the domestic level. Human rights organisations leading legal cases – such as the Mutual Support Group (Grupo de Apoyo Mutuo, GAM), the Centre for Human Rights Legal Action (Centro para la Acción Legal en Derechos Humanos, CALDH), and the Legal Bureau for Human Rights (Bufete Jurídico de Derechos Humanos, BDH) – have become increasingly active in engaging the regional system to try to overcome the absence of proper remedies in domestic courts. The role and impact of the inter-American system will be discussed in more detail below.
The first major impulse leading to judicial processes for past human rights abuses was the delivery of the CEH report in 1999. The report offered a window of opportunity for victims’ groups and human rights organisations to put forward claims to establish responsibility for past crimes. The first guilty verdict came the same year, when a former member of a civil defence patrol, a civilian, was sentenced to 220 years in jail.22 Previous legal changes or developments that allowed the Guatemalan judicial system to pursue such cases included the 1994 incorporation of the crime of enforced disappearance into the Penal Code, as well as a 1996 district appeal court ruling that crimes committed against civilians by members of the armed forces should be tried in ordinary, rather than military, courts. However, the judicial cases brought in 1999 and subsequently have been slowed through repeated use by the defence of recursos de amparo (writs of protection), a legal remedy intended to protect individual rights in extremis.23
It is difficult to establish with accuracy the number of ongoing human rights cases as well as the number of military officers currently on trial in Guatemalan courts for conflict-related acts. A report by the Due Process of Law Foundation, a region-wide non-governmental organisation (NGO), estimated 1,749 open cases in 2010 (DPLF 2010, 169). As we will see below, official figures given by the Public Prosecutor’s Office (Ministerio Público), are far below this estimate. According to the office’s 2013 annual report, in that year only 11 denunciations were made, and four verdicts delivered, for crimes related to the armed conflict (Ministerio Público 2013, 140).
One feature of the Guatemalan justice sector that has an impact on the outcomes of legal processes is the selection of Supreme Court judges. These judges are appointed by the National Congress from a shortlist developed by a dedicated commission, thus posing several challenges to the independence of senior judges. A similar issue arises with regard to the Constitutional Court: two of its five members are appointed by the other two branches of state (the president and Congress), and a third member is nominated by the Supreme Court. On several occasions, the Supreme Court and, particularly, the Constitutional Court have gone beyond their mandates, intervening to a questionable extent in lower courts’ handling of human rights cases involving members of the armed forces. In one widely criticised example, the Constitutional Court took the unprecedented step in 2000 of overturning both first instance and appeal court verdicts in a notorious massacre case (the 1982 Dos Erres case, in which 350 people were killed). The overturning of these verdicts was based on the amnesty provisions of the National Reconciliation Law, even though these do not apply to crimes against humanity.
The Dos Erres case is an example of the many obstacles that victims and relatives face in seeking domestic justice for crimes committed during the Guatemalan armed conflict. As a result, a significant number of such cases have been taken to the inter-American human rights system. Since 1999, the Inter-American Court of Human Rights has issued eight rulings pertaining to the Guatemalan armed conflict, including well-known cases such as Myrna Mack (2003), Maritza Urrutia (2003), Plan de Sánchez (2004), and Dos Erres (2009).24 In each case, damages were awarded to victims against the state of Guatemala. In December 2009 the Guatemalan Supreme Court (SC) declared Inter-American Court verdicts to be ‘self-executing’, that is, they must be adopted and implemented by the Guatemalan judicial system without delay.25
Human rights organisations, survivors, victims, and their relatives have also considered it necessary and strategic to bring cases before third-country courts. The choice of cases for submission to the regional system or third-country courts is sometimes driven by practical considerations such as citizenship connections or eligibility requirements. Within these limitations, the civil society organisations that advance such cases try to carry out strategic litigation, selecting cases that are considered emblematic or paradigmatic insofar as they are illustrative of many other cases and have the potential to set precedents once a decision is made. In this way the Guatemalan human rights sector is attempting to push cases that open the way for future cases to come.26
An important example of strategic litigation in a third country is the universal jurisdiction litigation in Spanish courts that eventually generated the domestic genocide case against Ríos Montt and four co-defendants. The case was initiated by Nobel Peace Prize winner Rigoberta Menchú in 1999 when she presented a claim to the Spanish National Court against Ríos Montt for the crimes of genocide and torture. Although the issue of jurisdiction was initially rejected by Spanish lower chambers and Spain’s Supreme Court, these decisions were appealed, and in 2005 the Spanish Constitutional Court concluded that universal jurisdiction applied and that the case could proceed in Spanish courts. Since then, the defendants have presented numerous appeals. International arrest orders have been issued, but only one arrest has been made. In 2007 the Guatemalan Constitutional Court (CC) declared that the Spanish court system did not have jurisdiction to try Guatemalan citizens, thus obstructing, yet again, the course of justice. In spite of these obstacles, the Spanish process continues (FIDH 2013).
Various developments have contributed to the advance of accountability in Guatemala over the past ten years. In 2005, the archives of the former National Police (associated with repression and dissolved a year after the peace accords) were accidentally unearthed after decades of abandonment. Today these records have been transformed into the state-administered Historical Archive of the National Police, with support from the United Nations and international donors. The Archive has become an extraordinarily useful source for understanding the interconnected operating structures of the police and the army during the conflict.27 The following year brought the promulgation of the Law on Freedom of Access to Public Information (Legislative Decree 57–2008), which institutionalised access to public records. In 2007 the International Commission against Impunity in Guatemala (Comisión Internacional contra la Impunidad en Guatemala, CICIG) was established, with the mandate to function as an international monitoring body on the rule of law and accountability in Guatemala.28 It is in this context that the first conviction of a high-ranking officer was issued in 2009 for forced disappearance during the armed conflict in the El Jute case, in Chiquimula (CALDH 2010). This demonstrated, first, that justice extends beyond the rank and file, and second, that domestic courts can deliver convictions.
Cases have also advanced due to the staunch persistence of individuals within the state apparatus who are committed to human rights and the rule of law. In December 2010 the Public Prosecutor’s Office came under new administration when Claudia Paz y Paz Bailey was appointed prosecutor general (fiscal general) by then president Álvaro Colom.29 With a background in the non-governmental and human rights sector, she was welcomed by pro-accountability actors, and her role in reshaping the Public Prosecutor’s Office cannot be overstated. During her tenure, the overall focus was on improving accountability and combating impunity, both for crimes of the past and for present crimes. Policy changes included tackling organised crime – a major social and political problem in post-conflict Guatemala – through strategic criminal prosecution with an emphasis on the rights and protection of victims and witnesses (Ministerio Público 2012). The prosecution strategy was intended to take account of the large backlog of cases pending in the Guatemalan judicial system, recognising the difficult conditions surrounding justice administration in the country. Shifting away from a case-by-case approach, the strategy focused on targeted identification and investigation of criminal structures, seeking patterns in interconnected cases. The same approach was applied to the Unit for Special Cases from the Internal Armed Conflict, part of the Prosecutor’s Office of Human Rights (Fiscalía de Derechos Humanos) at the Public Prosecutor’s Office.
Not surprisingly, this change of direction at the Public Prosecutor’s Office provoked opposition from military-based organisations such as AVEMILGUA (Asociación de Veteranos Militares de Guatemala) and Familia, which have closed ranks in an uncompromising defensive posture. These two associations have targeted CICIG, the Public Prosecutor’s Office, and the Criminal Chamber of the Supreme Court for public criticism, marshalling economic resources and powerful supporters for their vendetta.30 The case against General Ríos Montt has raised the profile of these organisations and their arguments. The current line of defence for military personnel on trial for crimes committed during the armed conflict is to argue that massacres and extrajudicial killings were committed by both sides but that the state did not undertake practices of genocide.31 This has raised a new set of challenges for political-legal struggles against impunity.
Furthermore, in the aftermath of the impasse around the Ríos Montt trial, the Constitutional Court took the decision in February 2014 to shorten the mandate of Paz y Paz on grounds of irregularities in her appointment, calling for a new selection committee to find a replacement. The committee excluded Paz y Paz from the list of nominees and Thelma Aldana was appointed the new prosecutor general in May 2014. It remains to be seen whether the advances in accountability made under the leadership of Paz y Paz will be weakened, dismantled, or further developed by the new prosecutor.
The case against former army general and de facto president Efraín Ríos Montt has received much international attention.32 After being ousted as head of state by a military coup in 1983, Ríos Montt did not disappear from public life. He founded a right-wing party, the Guatemalan Republican Front (Frente Republicano Guatemalteco) in 1989, was elected to Congress in 1990, and served several terms until 2012. During this period he enjoyed parliamentary immunity. He made two unsuccessful bids for the presidency, in 1999 and 2003.
The charges against him date back to 2001, when the Association for Justice and Reconciliation (Asociación Justicia y Reconciliación, AJR), a coalition of communities affected by the conflict, lodged before the public prosecutor a complaint for genocide and crimes against humanity. The complaint named Ríos Montt along with José Mauricio Rodríguez Sánchez, former chief of military intelligence; Oscar Humberto Mejía Víctores, former defence minister; and Héctor Mario López Fuentes, former army chief of staff. The prosecutor’s office, however, failed to open investigations, and it was not until 2007 that a lower court admitted the AJR’s request that the Ministry of Defence be required to hand over information regarding military operations in the early 1980s. The Ministry continued to ignore the decision until 2009. That same year, army records for Operation Sofia, conducted during the Ríos Montt period, were found by the National Security Archive, a United States-based NGO. This evidence was placed at the disposal of the Spanish court and the domestic courts through case plaintiffs (FIDH 2013, 8).
In June 2011, ten years after the case started, the prosecutor general completed the investigation. On 26 January 2012, only days after his congressional term – and immunity – ended, Ríos Montt was indicted on charges of genocide and crimes against humanity in connection with his 1982–83 term as de facto head of state.33 The judicial process itself started in January 2013 in the Guatemalan Court for High Risk Crimes (Tribunal A de Mayor Riesgo).34 In the Ríos Montt trial, the initial claimant AJR participates as querellante adhesivo (civil party complainant) in support of the prosecution, being represented by two human rights NGOs, CALDH and BJD.
During the proceedings, which started on 19 March 2013, more than 90 survivors presented their testimonies, with terrifying accounts of massacres, forced displacement, torture, and rape. Expert witnesses were also called upon to elaborate on forensic evidence, statistical analysis, operational plans and chain of command in the Guatemalan armed forces, and international law concerning core crimes (Open Society Justice Initiative 2013). The trial was closely followed by national and international media, judicial observers, human rights advocates, and victims’ groups around the world.35 In Guatemala, the trial provoked public demonstrations both for and against accountability (La Nación 2013), contesting the issue of whether genocide had or had not occurred. In other words, the struggle for memory continued.
Despite intense use of delaying tactics by the defence, on 10 May 2013, the Court for High Risk Crimes sentenced Ríos Montt to 80 years in prison for genocide and crimes against humanity. The relief and sense of justice of thousands of victims was short-lived, however. On 20 May, the Guatemalan Constitutional Court nullified the sentence, based on allegations of procedural errors that compromised due process. This unprecedented and widely criticised decision effectively rolled back the process to the moment when the alleged procedural failures occurred: 19 April 2013 (Hernández 2013; El Telégrafo 2013).36 This implies that all proceedings that took place after that date will have to be repeated, including the sentencing.
Restarted in early January 2015 after endless wrangling about court composition, the process was almost immediately suspended when the defence charged one of the new judges with bias. In July 2015, Ríos Montt was declared mentally unfit by the National Institute of Forensic Science (a subsidiary of the Public Ministry) and thus unable to stand trial. As of January 2016, it is still uncertain when or whether the process will restart. Clearly, the trial is about much more than the fate of Ríos Montt as an individual; at stake is the struggle for truth and memory, and the acknowledgement that genocide and gross violations of human rights did happen in Guatemala. Survivors, support groups, and human rights organisations follow vigilantly any developments affecting the potential reopening of the trial. Although short-lived, the guilty verdict of 2013 was considered a victory and has given hope to those seeking accountability for past crimes in Guatemala.
Addressing the needs of victims has been formally on the agenda since implementation of the peace accords began (Alvarado Pisani 2007). Overall achievements, however, are limited. In 1994, the Global Accord on Human Rights, signed by the Guatemalan government and the URNG, established a state duty to attend to the victims of the internal armed conflict and provide reparations (sec. VIII, para. 1). The mandate of the Commission for Historical Clarification called for the formulation of specific recommendations to preserve the memory of the victims and to favour peace and the observance of human rights and democracy. The CEH’s final recommendations, in 1999, included the ambitious National Reparations Programme. Although the 1996 National Reconciliation Law had granted perpetrators limited amnesty from prosecution, it did not waive the right to truth and reparations. This fact, plus the inclusion of reparations measures in both the CEH mandate and the peace accords, has reinforced the demand that the state provide reparations (resarcimiento). For many human rights organisations, however, this cannot be done without also addressing amnesty and impunity (Sieder 2001; Crandall 2004).
Implementation of reparations programmes started with pilot projects in 2001. These led to the enactment of Decree AG258 of 2003, which established the National Reparations Commission (Comisión Nacional de Resarcimiento, CNR) and the National Reparations Programme (PNR). The CNR initially included representatives from victims’ groups and civil society organisations alongside state representatives. The rules regulating the PNR’s functions were first established in 2005, the same year that the CNR reduced the number of representatives to five, from the public sector only. The PNR was reorganised in 2008 and again in 2012, during two different administrations. The institutional shift initiated in 2012 aimed to bring the programme in line with overall social policies introduced by the Otto Pérez Molina government.37 As of 2014, however, the PNR still did not have a national register of victims. Allocation and entitlement was therefore based on ad hoc registration processes, which have been criticised by user groups and experts for arbitrariness and for placing the burden of proof on victims (Red de Organizaciones 2012).
Assisting victims through reparations has proved to be a challenging task in Guatemala, given institutional uncertainty and limited resources. The institutional and legal basis for reparations rests on governmental decrees (acuerdos gubernativos, issued by the executive), not laws passed by the legislature. This makes the implementing agencies (CNR and PNR) vulnerable to recurrent, politically driven changes that add unnecessary pressure to an already fragile structure. For example, since the establishment of the PNR, each presidential administration has introduced changes to the programme, altering the emphasis and forms of interaction with different stakeholders, such as civil society and victims organisations. Between 2008 and 2011, relationships with human rights organisations became closer, as the PNR’s leadership at that time was drawn from the human rights sector. This, however, did not necessarily imply a strengthened relationship with indigenous organisations, some of whom are critical of what they consider to be clientelistic practices of the PNR (Red de Organizaciones 2012).
The original aim of the reparations programme in Guatemala was to provide comprehensive reparations in five areas: material restitution (including housing support), economic compensation (individual and collective), cultural reparations, measures to restore the dignity of victims, and psycho-social rehabilitation. Together, these measures were meant to address the collective and ethnic dimensions of the armed conflict. Although the National Reparations Programme, as formulated, includes all these aspects, an overall assessment shows that the PNR has focused its efforts on the implementation of economic compensation, which started in 2006. In 2011, almost 80 per cent of the PNR’s funding was allocated to individual economic compensation, while activities to strengthen the dignity of victims received 15 per cent of the budget (PNR 2011). Despite this, only 1,685 individual beneficiaries received economic compensation in 2011 (PNR 2011, 33), with 868 more added in 2012 (PNR 2013, 24). Updated totals are not readily available, although the PNR indicated that, as of the end of 2011, it had registered 52,922 files (expedientes) of human rights violations committed during the armed conflict (PNR 2013, 27).38 Not all human rights violations provide the basis for economic compensation in Guatemala (see below), but the difference between the number of beneficiaries in 2011–12 and the total number of violations registered suggests a mismatch between the scope of potential beneficiaries and the results achieved.
According to Guatemala’s Public Policy on Reparations (PNR 2003), victims are defined as all those who have suffered a human rights violation, directly or indirectly, individually or collectively. The violations that provide a basis for reparations are enforced disappearance, extrajudicial execution, physical and psychological torture, forced displacement, forced recruitment of minors, sexual violence, violence against children, and massacres. The economic reparations programme is supposed to give priority to beneficiaries who have permanent disability and thus are not able to support themselves, and to the elderly.
Victims’ groups and beneficiaries of the economic compensation programme have raised several criticisms of its implementation. One concerns the relatively small amount of compensation provided. According to current regulations, each recognised family unit can claim compensation for a maximum of two victims or violations, irrespective of whether more family members were victimised or several violations were suffered. The monetary lump sum assigned to a family unit which has suffered the death of a relative is 24,000 quetzales (approximately US$3,100) for the first victim, with an additional 20,000 quetzales (approximately US$2,600) for a second victim. Thus, the maximum a family can receive is around US$5,700. Providing economic reparations at the family-unit level has also generated cultural problems. According to Viaene (2010), the Mayan cosmology to which many surviving families subscribe requires initial steps of direct discussion, negotiation, and agreement between victim and perpetrator as a fundamental stage in repairing harm. This step is not contemplated in the operations of the National Reparations Programme, where compensation is provided through a cheque delivered at a public event. This means of delivery is not in tune with Mayan practices and can even be experienced as a form of revictimisation.
Two aspects of reparations in Guatemala are closely linked to criminal accountability. The first concerns exhumations. Official practice to date has been to leave this task to specialised NGOs and civil society organisations. These organisations, mostly funded by international donors, provide technical and forensic expertise, and sometimes legal advice and psychological counselling as well. The demand to investigate new clandestine burial sites and identify the remains of thousands of victims nonetheless far exceeds existing capacity, despite the commitment and professionalism shown by these institutions.39 The PNR provides some support at the end of the process, at the reburial stage, although this is considered insufficient by victims’ organisations (Red de Organizaciones 2012).
A second aspect concerns the use, for judicial purposes, of information collected by the PNR in the registration process. Current national legislation requires public institutions that obtain knowledge about serious conflict-era crimes to report them to the Public Prosecutor’s Office. This duty obviously also applies to the PNR. In 2009, for example, the PNR passed on 3,385 reports (denuncias) of human rights violations committed against 5,908 victims during the armed conflict to the public prosecution service in order to initiate criminal investigations (Human Rights Committee 2011, para. 28). It is unclear whether the survivors or relatives directly involved were consulted or had given their consent for this procedure. While the Public Prosecutor’s Office has the mandate to initiate such investigations on its own, it is problematic that victims are not properly informed about a process that potentially will involve them.40
One final observation is that economic reparations have begun in a relatively expedient way. In the absence of a consolidated victims’ register, compensation, like other forms of reparations, has instead been granted on the basis of a PNR database known as the Listado Rápido (Quick List). The lack of a single register has been noted since the first PNR evaluations and still poses a challenge to the fulfilment of the PNR’s mission in support of victims and survivors (PNR 2007, 2014).
Conclusions: accountability against all odds
The peace accords that put an end to the internal armed conflict in Guatemala embodied the aspiration for a democratic political project. Accountability for human rights violations during the conflict and redress to victims were understood to be central to the achievement of this aspiration. A simple checklist of the transitional justice mechanisms utilised might give the impression that Guatemala has fulfilled the accountability agenda envisaged in the accords. Such an assessment would be only partly correct. There have been significant, albeit few, advances in transitional justice, notably the publication of two solid truth commission reports, the genocide trial of Ríos Montt, and the implementation of the economic reparations programme. Important tasks remain pending, especially in the area of criminal justice, particularly investigations and exhumations, and in taking a comprehensive approach to reparations.
Although still incomplete, Guatemala’s progress in accountability is striking precisely because it has happened against all odds, in a politically hostile and impunity-prone context. This is particularly evident in the current struggle over historical truth. Revisionist forces have questioned the findings of the CEH and REMHI reports while attempting to obstruct trials against perpetrators. The struggle for memory is taking place in the public debate, but also in closed chambers, where judicial authorities have the capacity to promote or block accountability.
Advances followed by setbacks are common in Guatemalan institutional and political life and will likely continue. The changes of direction in the Public Prosecutor’s Office between 2008 and 2012; the general trends in the National Reparations Programme, if they continue; and above all, the steady commitment of civil society and victims’ organisations together provide a measure of hope for more sustained efforts towards accountability and redress.
Source: Authors’ construction, 2015.
Source: Authors’ construction, 2015.
Source: Authors’ construction, 2015.
Source: Authors’ construction, 2015.
Source: Authors’ construction, 2015.
Notes
*The authors thank Rachael Sieder, Stener Ekern, and Cath Collins for useful comments on earlier drafts of this chapter.
1The Constitutional Court’s ruling (expediente 1904–2013, 20 May 2013), setting forth its arguments in the case, is available in Spanish on the Court’s website at http://www.cc.gob.gt/images/DocumentosCC/Exp1904.2013.pdf.
2Created in 1982, the URNG grouped several Guatemalan insurgent organisations, including the Guerrilla Army of the Poor (EGP), the Revolutionary Organization of the People in Arms (ORPA), the Rebel Armed Forces (FAR), and a faction of the Guatemalan Labour Party (PGT). These groups emerged in the 1960s and 1970s, inspired in part by the Cuban revolution, and sought a radical socialist transformation of Guatemalan society through armed struggle (CEH 1999).
3 The constitution of 1956, in force until 1965, established that all communist activity, whether individual or collective, was punishable (REMHI 1998).
4Miguel Angel Reyes, interview by authors, April and June 2012. Reyes was a member of one of URNG’s member organisations and participated in the URNG advisory team until his resignation in May 1996. All author interviews for this chapter were conducted in Guatemala City.
5The full name of the accord is the Agreement on the Establishment of the Commission to Clarify Past Human Rights Violations and Acts of Violence that Have Caused The Guatemalan Population to Suffer. English translations of all the Guatemalan accords are available on the United Nations Peacemaker website, http://peacemaker.un.org/.
6Indeed, these limitations materialised in the National Reconciliation Law of 27 December 1996, discussed later in the chapter.
7Official election data from Guatemala’s Supreme Electoral Tribunal.
8This can be observed in the dismantlement of the public agricultural sector, among other areas.
9The CNAP is composed of three members appointed by members of the executive, the legislature, and the judiciary, political parties, and civil society organisations.
10They are Alvaro Arzú (1996–2000), Alfonso Portillo (2000–4), Óscar Berger (2004–8), Álvaro Colom (2008–12), and Otto Pérez Molina (2012–15), whose term ended abruptly in September 2015 due to corruption charges. Politically, these administrations can be characterised as centre-right to right-wing.
11Right-wing voices such as that of AVEMILGUA, the belligerent Military Veterans Association of Guatemala, founded in 1995, are increasingly heard in the public debate.
12Mario Domingo, then director of the Human Rights Office of the Archbishopric of Guatemala, interview by authors, April 2012.
13For a detailed discussion, see Impunity Watch (2008).
14Organisations that have played key roles in human rights and/or democratisation efforts include, among others, the Mutual Support Group (GAM), the Centre for Human Rights Legal Action (CALDH), the Legal Bureau for Human Rights (BDH), the Rigoberta Menchú Foundation (FRM), and the Myrna Mack Foundation (FMM).
15In an opinion piece, journalist Marcela Gereda (2012) took issue with a reader’s letter that had praised Ríos Montt ‘for saving Guatemala from the guerrillas and for having done good for the country’. Gereda claimed that this view is shared by many in circles close to the military.
16Quoted in Rodríguez (2012). An article the following day by well-known social commentator Gustavo Berganza (2012) described the march as having been characterised by combative Cold War language and support for impunity.
17María Eugenia Carrera, interview by authors, April 2012, and Rafael Herrarte, interview by authors, July 2012. Both were programme advisers at the Centre for Forensic Analysis and Applied Sciences (Centro de Análisis Forense y Ciencias Aplicadas, CAFCA), working with victims’ organisations and local communities in local memory initiatives.
18An important exception is the CNAP, discussed earlier, which emanated from the legal framework of the peace accords and was brought into being by Legislative Decree 52–2005.
19The Patriotic Party obtained 57 out of 158 seats in Congress at the last legislative election in 2012.
20Antonio Arenales Forno, presidential commissioner for human rights and secretary of peace, has repeatedly raised the idea in statements to local media since his appointment in March 2012.
21Guatemala’s criminal justice system follows a prosecutorial model in which the state, represented by the public prosecutor’s office, undertakes investigation and presents evidence before a judge or group of judges in public proceedings. The judge or judges reach a decision based on evidence presented and debated by defence and prosecuting attorneys. Victims can participate in the process as querellantes.
22Civil defence patrols (patrullas de autodefensa civil) were formed by the military during the armed conflict as part of a counter-insurgency strategy to control local villages. Conscripted from civilian rural populations, patrol members were forced to carry out violence against their own and neighbouring communities.
23Approximately 50 such writs were presented by defence teams on behalf of accused perpetrators during the first decade of the 2000s. Miguel Mörth, lawyer at Bufete Jurídico de Derechos Humanos, interview by authors, 27 April 2012.
24Details of these cases and an updated list of Inter-American Court (I/A Court HR) verdicts concerning Guatemala can be found on the website of the Presidential Commission for Human Rights (COPREDEH), http://copredeh.gob.gt/index.php?showPage=2403.
25On 11 December 2009, the Guatemalan Supreme Court established this principle for the Panel Blanca, Niños de la Calle, Bámaca Velásquez, and Carpio Nicolle cases, and by extension for all future verdicts from the Inter-American Court.
26Miguel Mörth interview, 27 April 2012.
27According to the Archive’s website (http://archivohistoricopn.org/pages/institucion/historia.php), its principal user up to 2011 was the Public Prosecutor’s Office, seeking evidence for cases.
28Creation of such an office was stipulated in the 1994 accord that established the CEH.
29After being nominated by a selection committee, Paz y Paz was the preferred candidate of human rights organisations. Her appointment followed the removal of the previous Prosecutor General, Conrado Reyes, on charges of corruption.
30For example, in a column in El Periódico on 14 August 2012, Ricardo Méndez Ruiz Valdés attacked the magistrate César Barrientos and prosecutor general Claudia Paz y Paz. Méndez Ruiz, director of the Foundation Against Terrorism (Fundación Contra el Terrorismo), is the son of the interior minister in Ríos Montt’s government. In the same edition of the paper, columnist Miguel Albizures commented on Méndez Ruiz’s attacks on the prosecutor general made during exhumation processes at the military barracks in Cobán (Méndez Ruiz Valdés 2012; Albizures 2012). Against the backdrop of such public controversy, current president Otto Pérez Molina announced, in February 2015, that the CICIG’s mandate might not be renewed. This met with national and international criticism, and the president announced subsequently that Guatemala would request, after all, United Nations support for the continuation of CICIG for two more years.
31See, for example, a press interview with Antonio Arenales Forno (2012), in which he declared, ‘I am outraged that they say there was genocide in Guatemala.’
32For excellent reviews of the Ríos Montt case and trial, see, among others, FIDH (2013), Open Society Justice Initiative (2013), and the International Justice Monitor site for the Efraín Ríos Montt and Mauricio Rodríguez Sánchez trials (http://www.ijmonitor.org/category/efrain-rios-montt-and-mauricio-rodriguez-sanchez/).
33The other two co-defendants were detained in 2011, but the charges were later suspended on account of their health.
34High Risk Courts were established by Decree 21–2009 of the Guatemalan Congress to hear criminal cases that demand increased security measures for those involved, including judges, victims, witnesses, and defendants.
35See, for example, the websites of Coordinación Genocidio Nunca Más (http://www.paraqueseconozca.blogspot.no/) and the American Society of International Law (especially ‘The Rios Montt Genocide Trial in Guatemala’, http://www.asil.org/rios-montt-genocide-trial-guatemala).
36The decision by the Guatemalan Constitutional Court caused condemnation among human rights organisations, scholars, and solidarity groups, both national and international. Concerns were also expressed by the inter-American human rights system, countries in the region, and the international donor community. Numerous demonstrations and protests were organised both within and outside Guatemala.
37These social policies focus on improving nutrition, public security, productivity, and competitiveness. The PNR has incorporated these policy changes in its Strategic Institutional Plan 2013–2016, as detailed in its annual reports (PNR 2013, 17, and 2014, 21).
38In the absence of a national victims’ registry in Guatemala, it is not possible to establish with accuracy how many individual victims the 52,922 files actually represent. PNR annual reports do not address that question.
39Forensic Anthropology Foundation of Guatemala (www.fafg.org) and Centre for Forensic Analysis and Applied Sciences (www.cafcaguatemala.org) have become leading institutions in the field of forensic anthropology at the national and international levels.
40The same situation arises for the 2,783 files on enforced disappearance transferred by COPREDEH to the Public Prosecutor’s Office in 2010. COPREDEH received the files from the CEH Working Group on Enforced Disappearance in 2009. By April 2011, the public prosecutor had initiated investigations on 86 of these files (Human Rights Committee 2011, para. 25).
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