Guatemala’s Court Wars and the Silenced Genocide

Eight years of heroic efforts to punish the ringleaders of Latin America’s worst mass slaughter of the 20th century appeared to come to an anti-climactic end in the last days of 2007. Exonerated by Guatemala’s highest court, two sickly men detained on charges relating to genocide of the country’s Mayan people were discharged from their private military hospital just in time for Christmas.

March 13, 2008

Eight years of heroic efforts to punish the ringleaders of Latin America’s worst mass slaughter of the 20th century appeared to come to an anti-climactic end in the last days of 2007. Exonerated by Guatemala’s highest court, two sickly men detained on charges relating to genocide of the country’s Mayan people were discharged from their private military hospital just in time for Christmas.

The homecoming of Germán Chupina, former police chief during the military dictatorship of 1978 to 1982, and Ángel Aníbal Guevara, defense minister during the same period, marked the definitive conclusion of their cases in the eyes of Guatemala’s legal system.

The country’s Constitutional Court ruled on December 12 that a Spanish arrest order, which had been the cause of the two men’s detainment, had no jurisdiction in Guatemala. In 63 pages of dense argument, the Guatemalan court concluded that war crimes were best left to history, and that the Spanish, having left Guatemala in 1821, had no power to meddle once again in the affairs of a sovereign nation. There is no right of appeal.

In 2006, the Spanish High Court filed international arrest warrants against seven former leaders of the country’s military dictatorship. Besides Chupina and Guevara, the arrest order included former dictator Efraín Ríos Montt, who now has a seat in Guatemala’s parliament. With Montt and others, either hiding abroad or spared by judges, the Spanish court was left with two subordinates: Chupina and Guevara.

Indeed, the Spaniards’ legal fight against impunity over Guatemalan rights abuses has repeatedly been forced to change strategies in the face of continued judicial obstructions, which have been a constant complaint of Spanish Judge Santiago Pedraz.

Undeterred after the Constitutional Court’s ruling, Pedraz unveiled his riposte. The short legal resolution reaffirmed international arrest warrants against the seven men for their roles in a civil war that killed 250,000 people. He took special note of the 37 indigenous protesters and diplomatic staff incinerated or mowed down by Guatemalan Special Forces in the Spanish Embassy in 1980. (Chupina and Guevara failed to answer desperate phone calls from the ambassador on the day in question.) After stating these crimes remained unpunished, the statement berated bureaucratic inaction, defense lawyers and a “flagrant violation of the state’s international obligations.”

Judge Pedraz then appealed to witnesses from neighbouring countries, the United States among them, to send fresh evidence and testimony on the Guatemalan genocide to Madrid. “This means the universalization of the Guatemala genocide trial,” declared Rigoberta Menchú, the Nobel laureate and driving force behind the Spanish prosecution, whose father was killed in the Embassy assault. “It’s a big triumph for those who have died.”

“If there was any doubt over the legitimacy of Spanish jurisdiction, it has been resolved,” explains Antonio García, a Spanish lawyer in the case. “This is one of the few cases in which a state has given its seal of approval to a genocide.”

For the moment, however, prospects of a meaningful trial for Ríos Montt, his former colleagues, and the military commanders that carried out hundreds of massacres at the height of the counter-insurgency, from 1982 to 1983, appear dim. The recently established International Criminal Court can only investigate cases dating after July 2002. Neighboring countries have a limited interest in opening old wounds. And within Guatemala, the possibility of following Chile and Argentina – both of which were jolted into reopening human rights cases by Spain’s criminal investigations – seems more distant than ever.

“When any of the top military brass is involved, it’s very hard for any case to move beyond the very start of an investigation,” explains Leily Santizo, a legal expert at the Myrna Mack Foundation, a Guatemalan human rights group. And yet, Guatemala does not have the kind of amnesty laws once in place in Argentina protecting military junta members (Argentina’s Supreme Court repealed the amnesty laws in 2005). Instead, the climate of impunity reflects the ongoing power of the military establishment, retired and active, the complicity of the country’s elite, and a judicial system tottering towards oblivion.

The Guatemalan military’s omertà is not a recent invention. Clear evidence can be found in the civil war report of the Archbishop’s Office of Human Rights that the military was already bracing itself in the early 1980s for a judicial backlash. “There were a lot of officers’ meetings to draw attention to this,” one former soldier reported. “They were inculcating into us the idea that we weren’t going to lose power, that we weren’t going to eat one another.”

Pressure on the courts is palpable. A long list of threats and attacks against human rights activists and investigative judges has followed the emblematic crime of post-war Guatemala, the brutal murder of Bishop Juan Gerardi in 1998. And when crimes are brought before the courts, if they are punished, justice is at best partial: since December, a trial is underway for six members of a paramilitary group recruited by the army to violently exert control over indigenous communities in the 1980s. They are accused of involvement in the 1982 massacre of 177 women and children in Río Negro (locals claim the death-toll was closer to 400). The military commander who issued the orders, José Antonio Solares González, has been a fugitive from justice since 1993.

According to Santizo from the Myrna Mack Foundation, numerous criminal actions have been filed with Guatemalan courts, covering many of the infamous atrocities of the dictatorship. Retired officers have been summoned to testify, but to little avail. The public prosecutor washes its hands of such cases. On the day Guevara and Chupina were detained by a Guatemalan court two years ago, a representative of the prosecutor’s office did not even show up in court. “I don’t know whose laws are being applied, those of Guatemala, Spain, or Mars,” was a defense lawyer’s caustic rejoinder.

This judicial indifference reflects a much broader and systemic malaise. Serious crimes routinely go unpunished in Guatemala, where the murder rate is among the highest in the world. And according to a recent UN report, only 1.4% of homicide cases end in a court sentence. For many observers, this weakness reflects the unwholesome influence of criminal mafias tied to retired military officers and the imprint of the country’s economic elite. Criminals groups, according to the Washington Office on Latin America, “have been able to undermine the justice system and perpetuate a climate of citizen insecurity.”

After much resistance, the Guatemalan government finally agreed to host a UN commission charged with amassing evidence and filing cases against clandestine criminal groups locked into the country’s power structure. Ironically, the head of the investigative commission is Carlos Castresana. It was a decade ago that Castresana teamed up with Judge Baltasar Garzón and activist lawyers to push through the first cases of “universal justice,” leading in 1998 to the arrest in London of General Pinochet.

Officials have been careful to underline the distinction between the UN commission’s work and the Madrid genocide case. But the connections between counter-insurgency and today’s clandestine powers are, in almost every respect, undeniable. What’s more, says García, “guaranteeing the impunity of the past, does not help the impunity of today.” The hope with both efforts is the possibility that chipping away at Guatemala’s criminal fortress might one day spark life into the country’s silent courtrooms.

Ivan Briscoe is senior researcher at the Fundación para las Relaciones Internacionales y el Diálogo exterior (FRIDE), Madrid.

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