On Tuesday, December 23, a newly-constituted appellate court notified prosecutors and victims that it would decide within five days whether former head of state Jose Efrain Rios Montt would benefit from a 1986 amnesty. A decision is expected by Sunday or Monday.
Rios Montt, Guatemala’s de facto ruler during one of the most brutal periods of the country’s 36-year civil war, was convicted of genocide and crimes against humanity in May 2013, for his role in the massacres of indigenous Mayan communities in 1982 and 1983. However, ten days later, the constitutional court annulled the ruling, effectively on a technicality, requiring a new trial. That trial is now scheduled for January 5. Yet the highest court as well as intermediate appellate courts have left various questions open until now.
There are prior decisions rejecting an amnesty for Rios Montt. Yet, the constitutional court re-opened the question when, in October 2013, it ordered an appellate court (the Sala Primera, or first chamber) to further elaborate on a 2012 ruling in which the appellate court rejected the applicability of the amnesty to Rios Montt.
In the midst of a contentious and highly politicized nominating process to replace all of Guatemala’s appellate and supreme court judges, over 60 appellate judges refused to sit on the three-judge tribunal that was intended to issue a ruling. Now, following the conclusion of the 5-yearly nominating processes, with the new judges sitting for one month, a three-judge panel has been constituted and notified the civil parties that it would issue a ruling imminently. The constitutional court’s October 2013 judgment required the ruling to be issued five days from the notification.
The three judges who will issue a judgment are Freedyn Fernandez Ortiz, Carlos Rodriguez Meza, and Edith Marilena Perez. Marilena Perez replaced Aura Marina Mancilla after the latter excused herself as a former prosecutor and member of the Public Ministry’s Human Rights Prosecution Unit.
The 1986 amnesty at issue was instituted by Oscar Humberto Mejia Victores, Rios Montt’s successor, who also came to power in a military coup. Mejia Victores sought to prevent the prosecution of crimes committed under his own rule and that of Rios Montt, where Mejia Victores served as defense minister. The 1986 general amnesty was intended to apply to all political and related common crimes committed between March 1982 and January 1986.
During the peace agreements following the civil war, Guatemala’s congress passed a law rejecting all prior amnesties, and in their place establishing a limited amnesty which expressly prohibits amnesties for genocide, disappearance and other international crimes. Nonetheless, Rios Montt argues that he should still benefit from the 1986 amnesty established by his successor.
This week, a coalition of domestic and international human rights organizations called for the courts to reject the possibility of amnesty in this case, and for international crimes. The organizations also asserted that, pursuant to the constitutional court judgment the appellate court cannot reverse its prior ruling but only provide further elaboration for it. However, domestic human rights organizations–including the Center for Human Rights Legal Action (CALDH), representing the victims in this case–also recognized that judges have, in prior decisions in this case, acted outside of their mandate to delay or disrupt the progress of the case. Prominent human rights activist Helen Mack, representing the domestic coalition, said to newspaper Prensa Libre, “this is the true test for the newly elected judges to demonstrate their judicial independence.”
Rios Montt’s lawyer asserted that he is ready to stand trial again should a new trial begin, but asserts that Rios Montt should by law benefit from the 1986 amnesty.
Last week, the constitutional court helped to clear the way for a new trial to begin in early January when it rejected an order from an investigative judge which would have reverted the process to 2011, before Rios Montt had even been indicted.
A decision by the appellate court could either help further pave the way for a new trial by clearly rejecting the applicability of an amnesty for genocide and crimes against humanity. Or if it accepts the 1986 amnesty, the court would create more legal hurdles, place Guatemala in violation of clear international law, and further prolong—perhaps indefinitely—the possibility of Justice in this case.
Meanwhile, other obstacles which could delay the case substantially for the 86-year-old ailing former head of state present the risk of a de facto amnesty. At present, a start date for the trial is still set for January 5.