To read this article in Spanish, click here.
A group of conservative lawmakers, backed by military interests, recently proposed a blanket amnesty bill that would reverse years of judicial advancements in Guatemala. Known as the National Reconciliation Law, the proposal would allow dozens of generals convicted of enforced disappearances and war crimes to walk free, reinforcing impunity in a country where transitional justice efforts have yielded positive outcomes for the victims of a 36-year civil war.
The bill is currently on hold after passing two readings in Congress. Before entering its third and final reading, which would have resulted in the bill becoming a law, domestic and international pressure forced the country’s legislators to avoid passing such a detrimental initiative. The bill would reverse progress made under Guatemala’s High Risk Courts, which oversee serious crimes in Guatemalan society—including femicide, murder, money laundering, drug trafficking and organized crime, and illicit networks. Judge Yassmín Barrios presides over one of the two High Risk Courts in Guatemala. In 2013, she oversaw the historic case against late dictator Efraín Ríos Montt, in which he was convicted and sentenced on genocide and crimes against humanity for his campaign against the Maya Ixil peoples in the western highlands of Guatemala.
It was the first time that a domestic court carried out such a groundbreaking case in Guatemalan territory, with Guatemalan laws and judges. According to Barrios, even though the ruling was later annulled, the trial showed that “with small human and material resources, Guatemala had the capacity to comply with international standards.”
Barrios has also overseen other important cases in Guatemala, like Monsignor Juan Gerardi’s murder case in 2001, the first part of the Dos Erres massacre trial and Plan de Sánchez massacre trial in 2012, and various other cases of enforced disappearances. The judicial precedent set by these cases ultimately led to the May 10, 2013 genocide sentence. Due to her involvement in these cases, Barrios has faced pressure from Guatemala’s highest echelons of power, including the armed forces, which has resulted in many threats and attacks. During Gerardi's case, she went into exile for three months. "Fortunately, I'm alive," she says.
The reputed judge, who was in New York for a conference about feminism and extractivism, spoke with NACLA about the significance of the genocide trial in the region and the role of the sentence in the historic struggle for justice in Guatemala. During the interview, Barrios discussed strengthening of the justice sector, the social legacy of peace agreements, and contemporary attempts to dismantle the progress in Guatemala’s transitional justice process.
This interview has been edited and condensed for clarity.
Vaclav Masek (VM): What significance do you think this ruling had in Guatemala and in other countries that suffered repression at some point in their histories?
Yassmín Barrios (YB): It has served as an example for Latin America, so that other countries can judge their past internal conflicts within their national territories. For example, in El Salvador and in Colombia, the case of Guatemala has resonated in their respective judicial systems.
The ruling on the genocide case has allowed people to recognize their history, to know what happened in the past. It has also served to value, to a greater degree, the victims and their families. To dignify them, recognize their rights, because they had been made invisible for so many decades. For many years, they were denied access to justice and then, by giving them the space they deserved, the victims had the opportunity to explain what happened to them. They were able to narrate their experiences. [The genocide trial] also had a psychological aspect. People underwent a cathartic process. They expunged everything they had internalized for many years. This activity heals wounds; it closes their cycles of pain and mourning.
We can also see it in the cultural sphere. It made the cultural wealth of the Guatemalans known to the general public. For example, throughout the trial, the Public Ministry had translators. The plaintiffs had their translators. The defendants had their translators, also from the Ixil ethnolinguistic group. As the state’s judicial body, we had the official translators to do the translation in cases where people did not know Spanish. As if that were not enough, the public itself was also monitoring the translation. This debate allowed us to recognize our cultural and linguistic richness.
VM: It continues to shock me that there is still an agenda—or maybe it should be called a line of thinking that has been around for a long time—that denies the existence of genocide, despite this historical sentence that serves as a judicial precedent.
YB: We have to recognize that in a country where there is freedom, people have the right to think differently, to express their thoughts ‘freely.’ But, in reality, the courts are the ones responsible for establishing whether a crime has been committed or not. What do I mean by this? That in a country, logically, there will be different camps. Some will think ‘yes’ and others will think ‘no’ on the genocide question. It is possible that to this day there are people in the ‘no genocide’ camp. However, the jurisdictional bodies are the ones responsible for establishing whether or not the crime existed on the basis of the evidence that has been presented.
And that is the immensity of the sentence. When a jurisdictional body, based in the law, the Constitution, the criminal code, the criminal procedural code, international treaties and conventions, recognizes the existence of this type of crime—taking into account its objective and subjective elements and the evidence provided to determine the actions of the accused—then people are free to give their opinion if it [genocide] happened or not. But it is a court that has to determine whether or not the crime exists based on the evidence. This is what the three members of the court recognized when we handed out the sentence on May 10, 2013.
VM: I feel that, since that historic moment onward, there has been an effort to attempt to dismantle these institutions. Or perhaps the process was initiated before. Ten days after sentencing, the Constitutional Court decided to reverse the ruling.
YB: It was a divided vote of three to two, with two honorable magistrates concurring at the time. However, despite the fact that the Constitutional Court annulled the ruling, the Guatemalan judicial system grew stronger. It grew because the people of Guatemala had the opportunity to know the truth and its memory, and also sought reparations for the victims.
The people of Guatemala recognize that the judges were consistent in their deliberation: consistent with justice, consistent with our people, and consistent with the academy and with the capacity for analysis essential to any court of justice. We gave it our all. The judicial body acted consistently with history.
I see it as the trees, the flowers. Many times, in order for them to grow, it is necessary to cut their branches. This nurtures their growth. Cutting branches does not kill them; trees and flowers keep budding, this time with stronger roots. History moves forward. And you cannot go back; you cannot and should not regress.
VM: Do you think there is any link between these kinds of challenges and what we are seeing in Congress with the National Reconciliation Law?
YB: Well, these are two different historical moments. What I see with the National Reconciliation Law is the following: On the one hand, the justice system will no longer be judging cases that occurred within the timeframe of the Guatemalan armed conflict. The other element is that the cases that are already in trial, let's say, where the investigation had already started before this law came into force, will no longer continue.
And in cases where a conviction has already been issued, the people who are imprisoned will leave prison immediately because that is what the bill itself establishes. They would leave 24 hours after the law came into force.
The legal initiative has already been through two interpretations in Congress. But after two sessions, it is at an impasse. We hope this law does not advance because it would be a decree that would go against human rights treaties and international conventions, because amnesty is not allowed for these kinds of crimes.
On the other hand, it would violate victims’ access to justice. They could not lose their rights to reparation. For example, in the case of Sepur Zarco, the sentence has already been pled and appealed, and is already being carried out. Essentially, it has passed all the procedural stages of justice. Now, it only needs to be executed. And if the amnesty law is passed, and the people who have been convicted for their crimes are removed from prison, the rights of the victims would be severely violated.
VM: There seems to be a kind of amnesia in of not understanding that our country suffers from institutional gaps because of what’s happened in the past. How can a population become educated on the importance of human rights and historical memory?
YB: By getting involved. When we speak of human rights, we are talking about respecting the dignity of people on the basis of their humanity, regardless of our social, political, or economic status, our ethnic origin, our language or our religion. So, when people view things from this all-encompassing perspective, they will no longer be surprised, nor will they allow the situation to be polarized on either side of the ideological spectrum. Human rights are for everyone.
VM: I think that is something that has been seen not only in Guatemala, but in Latin America in general. Human rights are being condemned as a doctrine, as ideologically or inherently left-wing. As a subversive rationale that tries to change or radicalize the population. Where does this notion come from?
YB: I believe that it is a lack of knowledge and gross misunderstanding of the subject. Let's call it that, by its name: ignorance.
VM: Let’s return to the issue of the institutional crises in Guatemala. Perhaps for an international audience, what comes to our attention first would be, first, violence; second, corruption and impunity; and third, migration, an issue that today is very politicized in the United States. Those three issues—you can correct me if I'm wrong—I think emerge from the war. Perhaps some may even precede the conflict, but their contemporary manifestations are the result of a peace process that offered many things and that in the end never materialized into any fruitful initiatives.
So, the question is, during the peace process, which was a 10-year negotiation, was institutional consolidation in Guatemala thought of as an important issue in order to prevent these three structural issues—violence, corruption and impunity, and mass migration?
YB: I believe that the peace agreements have paid off, maybe not in all their extension or dimension. I think that the entire population is immersed within them. And everyone, in the role we play, should participate to make them comply.
Now, there are situations that are different. Recall that history, law, and society evolve. Not everything can be pragmatically contained within a normative body. Reality is much stronger and it evolves. It is precisely from this reality that legal norms are made and applied in accordance with specific historical moments. So, I think that what we would have to rethink is the need for new agreements, because at some point time elapsed.
VM: Can you give some examples?
YB: For example, if demilitarization occurs and there are groups that I need sources of employment, we must continue to ensure they have work to do in times of peace. So, I think you have to have that projection to think later about what is going to happen with these people.
Another thing, for example, was that the armed conflict lasted 40 years, so we cannot expect that 40 years of war will be remedied in ten years. You have to work more deeply in education programs. And if there the social fabric was destroyed, Guatemala needs to look for techniques, methodologies and tools that are directly applicable to the benefit of the population. It is not enough just to say it.
For example, it is necessary to generate sources of employment. You mentioned migration. I would say, what do we need to prevent people from migrating? Generate jobs in the countryside, and not only within the capital city. There is a need to decentralize. Investment is necessary not just in the city but in the different departments across Guatemala. Our people are very good. They are creative and hardworking. We need to formalize and carry out social programs.
VM: Do you believe there is an initiative in the Peace Agreements that was promising and has fulfilled its potential? What initiatives have had some kind of positive impact in the Guatemalan society?
YB: Strengthening the judiciary. I became a judge as part of the first cohort opened for opposition judges. I went through all the oral and written exams. I am a graduate of the school of judicial studies in Guatemala, where I received formal training. And thank God, during the time I've worked [in the justice system], I’ve been an independent judge. So that's part of a new generation that came to integrate the judiciary. We’ve now seen all these cases that I'm referencing, something that was not seen in the past.
And the new cases that have been judged from 2015 until today are also part of those changes that occurred—a stronger judicial power. But as it becomes stronger and expands its reach, it faces persecution, more harassment, and more threats from its detractors.
VM: Do you believe the threats will continue?
YB: I hope not [laughs].
Vaclav Masek is a Guatemalan graduate student from the Center for Latin American and Caribbean Studies (CLACS) at NYU. His research focuses on the political histories of Central America.
Yassmín Barrios presides over Court A of the High-Risk Tribunal in Guatemala City. She presided over the genocide case against late dictator Efraín Ríos Montt in 2013.