There are increasing signs that Guatemala’s appellate courts may seek to prevent any new prosecution of former dictator Efraín Ríos Montt. In last year’s trial, Ríos Montt was convicted of genocide and crimes against humanity for the killing of indigenous Mayans during his brutal 1982-1983 rule. He spent only days of his prison sentence in jail before the constitutional court annulled the verdict in a controversial and divided ruling. A new trial is due to start on January 5, but many obstacles stand in the way. New obstacles appeared this week.
On Wednesday, in an unexpected action, the country’s constitutional court demanded the case file to permit it to rule on whether the trial should be sent back to its status as of November 2011, three years ago. At this time, Ríos Montt had not even been charged: as a member of the Congress then, he benefited from immunity. Only Mauricio Rodriguez Sanchez, Ríos Montt’s intelligence chief, and Mario Lopez Fuentes, his army chief of staff, were indicted in the case then.
This additional setback would make any new trial unlikely in the near future—and perhaps unlikely at all given the 88-year old former general’s advanced age and poor health.
Ríos Montt’s 2013 trial marked the first ever prosecution for genocide in a national court, rather than before an international tribunal. As the case approached closing arguments, the climate in Guatemala around the trial became increasingly tense: military and business actors acknowledged atrocities but rejected the claims that there was ever genocide in Guatemala; victims, indigenous communities, civil society, and the international community largely supported the continuation of the trial.
On April 18, 2013, with the trial nearly concluded by a three-judge panel, investigative judge Carol Patricia Flores intervened with a ruling to try to revert the case back to November 2011. Judge Flores had been removed from the case by an appellate court in November 2011 because of assertions that she lacked independence. However, at the start of the genocide trial, the constitutional court notified the parties that it had overturned the earlier decision removing Judge Flores for bias.
Judge Flores called a hearing near the expected close of the trial—ostensibly for the limited purpose of incorporating defense evidence that had been rejected by her successor. However, Judge Flores shocked trial observers when—mid-trial—she ordered the entire trial up to that point annulled and the judicial process returned to the status at which she was removed seventeen months prior, in November 2011. This stalled the trial temporarily, but the constitutional court eventually ordered it to reconvene.
The issue of whether the case could be returned to November 2011 remained a live one after the constitutonal court overturned Rios Montt’s guilty verdict and sentence.
Late last year, an appellate court upheld Judge Flores’ decision; this ruling was in turn taken before the constitutional court on March 26, leading in turn to this week’s request for the case file.
Two of the five constitutional court magistrates, including Gloria Porras, dissented from the constitutional court’s ruling seeking the case file to resolve the issue now. Judge Porras argued that the constitutional court’s intervention now was unnecessary, and that parties were abusing judicial avenues. Judge Porras was also one of two judges who dissented from the constitutional court ruling which annulled the verdict convicting Ríos Montt.
But this latest judicial move might also inform the consideration of the case by the Inter-American Commission. Following the constitutional court’s annulment of the verdict, victims brought their claim to this regional body, contending that the government’s actions were a violation of their rights. The victims seek the regional body’s reaffirmation of the validity of the initial judgment.
The question as to whether an amnesty should apply to the defendants is also again an open question before the Guatemalan courts—despite clear prior national and international law recognizing amnesties for genocide and other international crimes as patently illegal. The constitutional court reopened the question of whether the broad amnesty issued by Ríos Montt’s successor—who toppled him in a coup—could prevent Ríos Montt’s prosecution. This could have far-reaching consequences beyond just the Ríos Montt case, preventing other prosecutions for international crimes from advancing in Guatemalan courts.
These obstacles follow a contentious and only recently concluded process in which the country selected all of its appellate and supreme court judges. There was blatant evidence of corruption, and allegations of insufficient transparency and integrity in the process, but the constitutional court eventually endorsed the outcome.