Guatemalan Grave Crimes at Issue before the Inter-American Commission on Human Rights

Last week, the Inter-American Commission on Human Rights heard sharply divergent views about the nature of grave crimes committed during Guatemala’s 36-year conflict and the state’s responsibility to investigate and prosecute them.  Civil society and government representatives spoke before a hearing on Human Rights and Transitional Justice in Guatemala during the Commission’s 156th ordinary session in Washington, DC on October 22.

Civil society petitioners included Lawyers without Borders Canada, Guatemala’s Human Rights Law Firm (BDH), the Center for Human Rights Legal Action (CALDH), and the Center for Justice and International Law (CEJIL).  BDH and CALDH have frequently represented victims in grave crimes cases.  They sought the hearing in order to press state authorities to fulfill what they say are its transitional justice obligations.

Although they acknowledged some achievements in transitional justice, the petitioners argued that impunity remains the rule when it comes to conflict-related crimes. Less than one percent of criminal complaints received by the Attorney General’s Office related to the conflict have led to a sentence.  Furthermore, in light of aging witnesses and suspects, delays in investigations and trials constitute a threat to justice.  Since the May 2013 conviction and sentencing of former head of state Efrain Rios Montt on charges of genocide and crimes against humanity―which was overturned ten days later―two witnesses have died, while courts considered issues surrounding an ordered retrial.  The evidence that could have been provided by those two witnesses will be unavailable when the retrial of Rios Montt proceeds in 2016.  Meanwhile, an August 25 court ruling that the octogenarian defendant has deficient mental capacities casts further doubt on a new trial.  Rios Montt’s former military chief of staff Héctor Lopez Fuentes, who was the first to be indicted for genocide and crimes against humanity in relation to the conflict, died on October 18 at the age of 85 without evidence in his case ever being heard.

The petitioners argued that delays are due to the abusive use of preliminary motions, including those seeking the recusal of judges and applications for amnesty.  The judicial system has allowed such malicious litigation by defense attorneys, they argued, because there is a lack of political and judicial will to efficiently investigate, prosecute, and punish alleged perpetrators of grave crimes.  To support this claim, they pointed to the denial of genocide by the government of former President Otto Pérez Molina and the state’s failure to enforce arrest warrants, some of which were issued more than ten years ago. BDH attorney Edgar Pérez alleged that retired soldiers, against whom an arrest warrant has been issued, have been allowed to remain at large while they continue to collect their monthly retirement pensions.

CALDH cited as a further tactic to undercut justice, the filing of spurious criminal complaints against those justice sector actors who do try to move cases forward, including judges, prosecutors, attorneys, and expert witnesses.  In this vein, the head of the Attorney General’s human rights unit, Orlando Lopez, told the Commission of the criminal prosecution directed at him following his lead role in the 2013 prosecution of Rios Montt and his co-accused Mauricio Rodriguez Sanchez. Ricardo Mendez Ruiz, son of Rios Montt’s former interior minister and current president of the Foundation Against Terrorism, filed three complaints against Lopez accusing him of committing at least 15 crimes in relation to public comments Lopez made about the 2013 trial and its meaning for Guatemala. Mendez Ruiz also launched a criminal complaint in relation to remarks Lopez made before an appellate court in the course of challenging a travel ban imposed by a preliminary judge at a hearing that Lopez had not been allowed to attend.

Lopez asked the Commission to urge the state to ensure judicial independence and the autonomy of the Attorney General’s Office. In their pleas, the petitioners recommended the creation of a prompt and efficient procedure for criminal complaints against judicial actors to avoid the misuse of justice system to criminalize their work.

Finally, the petitioners urged the Commission to take a series of other actions to support transitional justice in Guatemala.  They asked the Commission to exhort the state to comply with 11 unfulfilled decisions from the Inter-American Court on Human Rights, refrain from denying that grave crimes were committed during the conflict, and stop stigmatizing the actors involved in the fight for truth and justice.

In response, Secretary of Peace and president of the Human Rights Presidential Commission, Antonio Arenales Forno, representing Guatemala before the Commission, denied that there was ever a genocide in Guatemala. Although he recognized that many indigenous people died during the conflict, Arenales Forno argued that this was because they were involved in or supported the insurgency.  He pointed to the recent proceedings against former President Otto Pérez Molina and former Vice President Roxana Baldetti on corruption charges to deny that Guatemala has a policy of impunity. He also defended the applicability of a general amnesty to former state actors, saying that it prevents their prosecution for crimes committed during the armed conflict.   A Guatemalan appeals court ruled earlier this month that there could be no amnesty for genocide, crimes against humanity, or other international crimes.

Arenales Forno further argued that there have already been too many trials for grave crimes in Guatemala, saying that people have been unjustly convicted of crimes for which an amnesty should have applied, or of crimes that did not exist at the time of their perpetration, in violation of the principle of legality. Furthermore, he justified Guatemala’s non-compliance with Inter-American Court of Human Rights decisions by recalling that the state does not recognize the court’s competence in relation to facts that occurred before March 9, 1987, the date on which the country officially accepted the court’s competence to hear cases related to human rights violations. The state also disagrees with the court’s conception of continuous violations to justify findings against Guatemala for ongoing failures to investigate and prosecute grave crimes that occurred before March 1987.

Following the hearing, the Inter-American Commission on Human Rights will prepare a report in the coming weeks, in which it may make recommendations to the state regarding issues and arguments raised by the petitioners and state representatives.

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