The trial court approved 12 of the reparations requested by civil parties representing the victims in a reparations hearing Monday, May 13, 2012. The hearing was held three days after the conviction of de facto head of state Efrain Rios Montt on charges of genocide and crimes against humanity. Soon after the court’s reparations ruling, Guatemala’s president announced a willingness to comply with at least some of the reparations ordered by the court.
Rios Montt was noticeably absent from the hearing. After a weekend in Matamoros Prison following his Friday conviction and 80-year sentence, Rios Montt was transferred Monday morning to a military hospital on account of hypertension, according to the hospital and his lawyers. Also on Monday, the volume of legal challenges currently pending in relation to the trial became more apparent.
Reparations Hearing
In last Friday’s judgment, the trial court ordered a reparations hearing on Monday, pursuant to Guatemala’s criminal procedure code. Article 124 of the criminal procedure code allows for victims to seek reparations at the conclusion of a criminal trial in which a guilty verdict has been issued. (Guatemala’s Civil Code allows victims to seek civil reparations, a fact that the tribunal alluded to in Monday’s hearing, identifying that this may be addressed further in a hearing scheduled for Friday in which the court will issue its final sentence.)
The reparations hearing, like the trial, was presided over by Judge Yassmín Barrios and her two associate judges, Patricia Bustamante and Pablo Xitumul. The hearing started at 8:30 am and lasted one hour.
Rios Montt’s attorneys notified the court at the start of the trial that Rios Montt himself was not present, providing the court with official verification that he had been transferred from the Matamoros Prison to a hospital. All parties agreed that it was possible to proceed with the hearing in his absence. Sources later reported publicly that the former head of state’s hospitalization at the Military Medical Center (Centro Medico Militar) was related to hypertension. Hospital staff reported that he will remain there under observation for 3-7 days.
Civil parties Center for Human Rights Legal Action (Centro para la Accion Legal en Derechos Humanos, CALDH) and the Justice and Reconciliation Association (Asociacion Justicia y Reconciliacion, or AJR) made over 25 different requests for reparations. The reparations were requested by the civil parties, and endorsed by the prosecutor.
In the hearing, CALDH emphasized that the requested reparations were aimed to address the ongoing denial of genocide among sectors of Guatemala society, and that the victims did not seek individualized monetary reparations. The victims instead sought measures to guarantee non-repetition through education, and the promotion of social integration and collective memory.
Neither of the organizations serving as the victims’ representatives requested any money from Rios Montt’s estate. All of the reparations requested recognized the responsibility of the Guatemalan state.
Francisco Garcia Gudiel, defense counsel for Rios Montt, challenged the requests for reparations, arguing as an initial matter that it was inappropriate to ask for reparations from the state when Rios Montt, and not the state, had been on trial. Garcia Gudiel acknowledged that he was not responsible for defending the state’s interests—but only his client’s—but nonetheless accepted this responsibility as part of his “duty” as a citizen, particularly in the absence of an attorney representing the state. (Garcia Gudiel admonished the prosecutors in particular for having endorsed the requests by the civil parties, tasked with representing the victims’ interests, when the prosecutor’s role is to defend its client, the state.) Garcia Gudiel asserted that it was a violation of due process and constitutional guarantees to make the state a party to the proceedings at this late stage.
Immediately following the hearing, the tribunal deliberated and, within 40 minutes, the trial court approved some but not all of the reparations. The court ordered largely symbolic reparations—intended to preserve the dignity of the victims, promote remembrance, and force the country to confront the horrors of the past.
Judge Barrios, when reading the court’s order on reparations, responded to the defense’s argument that reparations could not be ordered against the state when the state was not a party to the case. She affirmed that the Guatemalan government had not been prosecuted, but also that the state was in the position to provide the reparations most appropriate to the nature of the crimes committed. The court only read, in its order, the reparations approved and not those denied.
The court’s reparations order considers various types of reparations. First, the court order requires that various branches of the Guatemalan government apologize for genocide and crimes against humanity, and separately for the sexual crimes committed against Ixil women. Pursuant to the court order, all of the apologies must be in public ceremonies at the National Palace of Justice and the municipal centers of Santa María Nebaj, San Gaspar Chajul, and San Juan Cotzal, in the region sometimes referred to as the Ixil triangle, where the genocide occurred. In addition, the court required that each of the branches of government issue a separate formal written apology to be delivered to the three municipalities.
Second, the court’s reparations order requires the establishment of memorials and educational reforms to acknowledge the genocide and crimes against humanity. Guatemala must establish a cultural center to safeguard the historical memory; a museum commemorating the identity of the indigenous peoples of Guatemala; and a monument in honor of the victims, highlighting in particular the gendered violence and crimes against children. Guatemala must disseminate the trial judgment to educate the public as a way to “guarantee non-repetition” of the crimes, and the Public Ministry should dedicate a mural to the Ixil population, affirming its commitment to a multicultural system of justice. The order also requires the state to recognize March 23 as a National Day Against Genocide. (March 23 is the day Rios Montt came to power, a day which he had previously named the Day of National Reconciliation.)
Third, the court’s order requires the establishment of training programs for the military and intelligence entities which focus on human rights and humanitarian law—with the aim of preventing future war crimes and crimes against humanity. Fourth, the order requires the establishment of schools (elementary, secondary, high school and universities) in the communities affected by the genocide.
Finally, the order requires that Guatemala include genocide victims in the Ixil region under the 2003 Law on Reparations. Established by executive decree, the law created the National Reparations Program (el Programa Nacional de Resarcimiento, or PNR) to provide limited reparations to victims of the internal armed conflict. (The office is due to close at the end of 2013. Efforts to pass a reparations law through the legislature have been unsuccessful, and the PNR remains significantly under-resourced.)
The court did not establish a timeline for compliance with the reparations order, though the civil parties requested that the court require that the reparations be in place within six months. The implementation of the reparations judgment depends largely on legislative and executive will to pass the necessary laws and appropriate the necessary funds. Based on the court order, victims would have to seek judicial oversight if there is non-compliance with the reparations ordered.
The court rejected, without providing reasoning, some of the more significant and structural reparations requested—including those related to the repatriation of land ceded by the Maya Ixil without their consent; and the establishment of a program for sustainable development in the Ixil communities, including health system, infrastructure and educational reforms.
The tribunal also refused to order the creation of a high-level commission to oversee the implementation of the reparations, as well as a commission to search for victims of forced disappearance. The civil parties requested a law criminalizing genocide denial and hate speech against racial minorities; the court rejected this as well. In defending this request, CALDH highlighted that genocide continues to be too often denied in Guatemala.
CALDH asked for the court to order, as reparation, compliance with agreements the Guatemalan state already made—commitments in the 1996 Peace Accords and the International Labor Organization (ILO) Convention on Indigenous and Tribal Peoples (No. 169), of which Guatemala is a signatory. The court refused to order either. (Among other things, ILO Convention No. 169 recognizes the right of indigenous peoples to free, prior and informed consent regarding projects in their territories.) The court also did not order that Guatemala consult with the Ixil population on actions affecting them, as CALDH requested.
Also rejected were various requests for other educational reforms and symbolic measures—the dissemination of the report by the United Nations truth commission (Comision de Esclarecimiento Historico); the inclusion of human rights, multiculturalism and humanitarian law in the national curriculum; an apology to the international community in recognition of the fact that the crimes, as international crimes, are committed against all of humanity; the renaming of a street in Guatemala City (Avenida Reforma) the Avenue of the Dignity of the Ixil Peoples; and the inclusion of images of Maya Ixil people on Guatemala’s paper currency and on a postal stamp.
To the assembled media, after the reparations hearing, Garcia Gudiel framed the trial as political with the objective of enriching the victims, and insisted that the reparations hearing re-affirmed that. He insisted that the taxpayers would pay hefty sums for the implementation of the reparations ordered. Though the ordered reparations were largely symbolic and educational, Garcia Gudiel emphasized the reparations denied—particularly the request for the repatriation of land, as well as reparations not even requested, such as individual compensation.
AJR representatives defended to the media the court’s order that the state provide reparations, stating that the state apparatus must be responsible for repairing as it had been the state apparatus which was responsible for the repression recognized by the court in its conviction of Rios Montt for genocide and crimes against humanity.
The Government’s Response
Following the reparations hearing, Guatemalan President Otto Pérez Molina quickly announced his willingness to ensure compliance with at least some of the reparations ordered by the court. He stated that he would have no objection to issuing a public apology to the Ixil people, as ordered by the tribunal. He said, in fact, that he has wanted to offer this apology since the signing of the peace agreements and would welcome the opportunity today.
Perez Molina also stated that the Foreign Ministry will issue a communication soon charging the National Reparations Program with including the communities of the so-called Ixil triangle under the 2003 Law on Reparations, in a signal to the international community of Guatemala’s willingness to comply with its human rights obligations.
Perez Molina has been strongly criticized at some points during the trial for public statements suggesting high-level political disagreement with the charges—challenging that there was ever a genocide in Guatemala and strongly suggesting that the trial, and a conviction, would destabilize the country.
Foreign Minister Fernando Carrera highlighted on Monday the significance of the trial and judgment, identifying it as a sign that Guatemala can prosecute legally complicated cases which have not been prosecuted in other countries. Ex-president Alvaro Colom also hailed the judgment.
Legal Challenges Ahead
It is expected that the trial court will issue the final judgment on Friday, May 17, 2013. However, the guilty verdict does not become final, if at all, until all appellate recourses have been exhausted. Defense counsel will have 15 days from the date that the final judgment is formally issued to file an appeal.
Rios Montt’s defense counsel have highlighted publicly that already have pending at least 12 legal challenges before various judicial authorities—eight before the Supreme Court (Corte Suprema de Justicia) and four before the Constitutional Court (Corte de Constitucionalidad). Garcia Gudiel also stated that he plans to file other challenges, asserting that the court did not comply with binding court orders.
Moises Galindo, lawyer for co-accused Mauricio Rodriguez Sanchez, has publicly stated that he filed at least one new legal challenge to the trial, despite his client’s acquittal of both charges against him on Friday. Rodriguez Sanchez, former head of intelligence under Rios Montt, was acquitted of both genocide and crimes against humanity charges. Galindo stated that, on Rodriguez Sanchez’ behalf, he filed an amparo challenging the tribunal’s advancement of the trial five months. (The trial started in March though it had previously been scheduled to start in August.)
Galindo also stated that he filed on Sunday a challenge before the Constitutional Court seeking the dismissal of the three judges in the tribunal. According to Prensa Libre, Galindo’s legal challenge asserts that the tribunal did not adhere to a prior Constitutional Court order; he seeks the annulment of the trial.
Emi MacLean, Legal Officer of the Open Society Justice Initiative, contributed to the research and writing of this blog.