International Justice Monitor

A project of the Open Society Justice Initiative

Guatemalan Court Rules out Amnesty for Genocide and Crimes against Humanity

In a long-awaited judgement, a Guatemalan appellate court ruled last week that a 1986 amnesty decree could not apply to international crimes, including genocide and crimes against humanity.   The decision was in relation to the case of former head of state Efrain Rios Montt, who still faces charges of genocide and crimes against humanity for his role in the death of 1,771 Mayan Ixiles between March 1982 and August 1983.

The question of the amnesty had been pending since October 2013, when the constitutional court ordered the first chamber of the appellate court to further elaborate on a ruling it made in 2012, rejecting the applicability of amnesty to Rios Montt. In the intervening two years, more than 100 judges excused themselves from sitting on the three-judge panel to fulfill the constitutional court order, preventing a ruling until last week.

Rios Montt and his defense attorneys argued that an amnesty decree instituted in 1986 by Oscar Mejia Victores, Rios-Montt’s successor, who took power in an August 1983 military coup, should be applied to him and put an end to his criminal prosecution. Mejia Victores sought to prevent the prosecution of crimes committed under his and Rios Montt’s rule, in which he served as defense minister. The decree declared an amnesty for all political and related common crimes committed between March 1982 and January 1986.

In its unanimous decision last Monday, October 5, the appeals chamber ruled that genocide and crimes against humanity are not political or common crimes. Moreover, the court recalled that Guatemala has ratified the 1949 Convention on the Prevention and Punishment of Genocide and accordingly has an international obligation to investigate, prosecute, and punish the perpetrators of genocide. The appeals court also cited a subsequent amnesty law following the 1996 peace agreement that ended the 36-year armed conflict. That law expressly rejected previous amnesties and prohibits the granting of amnesty for the crimes of genocide, torture, enforced disappearance, and other international crimes.

The Association for Justice and Reconciliation (AJR) and the Center for Human Rights Legal Action (CALDH), civil parties in the case against the former general, welcomed the court’s decision as a demonstration of state responsibility in guaranteeing the non-repetition of crimes affecting human dignity. They also linked impunity for grave crimes committed in the past to current crime, saying that it helps explain why criminal networks within government persist.

The ruling sets a major precedent for grave crimes trials that are still under investigation.  In the near term, it allows proceedings against Rios Montt to continue.  Although Rios Montt’s co-defendant, Mauricio Rodriguez Sanchez, did not seek amnesty for himself, last week decision also rules out the application of the 1986 decree or any amnesty to him.

In 2013, Rios Montt faced trial together with Rodriguez Sanchez, his former head of military intelligence. On May 10, 2013, the trial chamber found Rios Montt guilty of genocide and crimes against humanity and sentenced him to 80 years in prison, while it acquitted Rodriguez Sanchez of all charges. However, the constitutional court overruled the verdict 10 days later and ordered a new trial, which has been repeatedly delayed since then. In August, medical experts reported that Rios Montt no longer has the mental capacity to face trial. Nonetheless, on August 25, 2015, the high-risk court ordered the re-opening of the genocide trial. Scheduled to start on January 11, 2016, special procedures will apply to accommodate the finding of Rios Montt’s unfitness for trial. Among these, the defendant will be absent and represented by a guardian, the trial will be held behind closed doors, and it cannot result in criminal sanctions.  Rather, if they find him guilty, judges could order the application of such security measures as admission to a psychiatric institution. Although the prosecution asked the court to separate the case against co-defendant Rodriguez Sanchez, the court’s majority ruled that a joint re-trial of both men can proceed, meaning that Rodriguez Sanchez’s trial will also be conducted behind closed doors. Victims will be allowed to attend, but there will be no access to media or observers.

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