Reconciliation in Guatemala: The role of intelligent justice

Race and Class

Volumn 44, Issue 1, 2002, Pages 33-59

  Seils, Paul F ^a  

^a International Centre for Transitional Justice   (United States)

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EID: 0038783095     PISSN: 03063968     EISSN: None     Source Type: Journal    
DOI: 10.1177/0306396802044001586     Document Type: Review

References (72)

1. While the date of the beginning of the war is a matter of conjecture in some quarters, that given here is accepted by the Commission for Historical Clarification (CHC). The Unidad Revolucionaria National de Guatemala combined the forces of the four Guatemalan left-wing insurgents, ORPA (Organization Revolucionaria de los Pueblos Armadas, Revolutionary Organisation of Peoples in Arms), FAR (Frente Armado Rebelde, Armed Rebel Front), EGP (Ejército Guerrillero de los Pobres, Guerrilla Army of the Poor) and POT (Partido Guatemalteco de Trabajadores, Guatemalan Workers' Party).
2. Seven different agreements, known as the peace accords.
3. The FRG (Guatemalan Republican Front) came to power in January 2000, winning both the presidency and the congressional majority. The founder and secretary-general of the FRG is Efrain Rios Montt, military dictator from March 1982 until August 1983. He is accused of genocide and other crimes against humanity committed during this time. The current president is Alfonso Portillo.
4. 'Conclusions and recommendations', in Guatemala, Memory of Silence (Report of the Commission on Historical Clarification, 1999), p. 17, para. 2. Although the CHC gives the dates of the conflict as 1962-96, most other commentators talk of a thirty-six-year war.
5. Ibid., para. 1. It is believed that around 132,000 of these 200,000 occurred between 1978 and 1984. (Conversation between author and Patrick Ball, responsible for statistical analysis of the CHC database, February 2001.)
6. Guatemala has twenty-one groups of Mayan peoples. According to many anthropological studies, they constitute the majority although official government figures have consistently put their total at less than 50 per cent of the population.
7. 'Conclusions and recommendations', Guatemala, Memory of Silence, op. cit., p. 35, para. 86 and p. 24, para. 33.
8. Ibid., p. 85.
9. Ibid., paras 108-26.
10. See Jennifer L. Balint, 'Conflict, conflict victimization and legal redress', in M. Cherif Bassiouni (ed.), Law and Contemporary Problems (Vol. 59, 1996), pp. 239-43.
11. 'Conclusions and recommendations', Guatemala, Memory of Silence, op. cit., p. 31, para. 66.
12. There are many complex reasons for the relative silence on the atrocities that were committed. In the first place, the military did an excellent job of not allowing any serious coverage of the events in the field. Although there is clear intelligence evidence that the US was fully aware of what was going on, it can be supposed that it remained silent because, already enmeshed in El Salvador and Nicaragua, it was happy to see the Guatemalan military maintain control by themselves, whatever the cost, if it did not imply a military or political cost for the US. Besides, the victims had no means of access to articulate the atrocities. They were all extremely poor, most had no education and very few spoke Spanish.
13. See Weissbrodt and Fraser, 'Book review on report of the Chilean National Commission on Truth and Reconciliation', Human Rights Quarterly (Vol. 14, 1992), p. 613.
14. See George Black, Garrison Guatemala (New York, Monthly Review Press, 1984), p. 43; 'Chronology', in Fried et al (eds), Guatemala in Rebellion (New York, Grove Press, 1983), p. 326-32.
15. See George Black, Garrison Guatemala (New York, Monthly Review Press, 1984), p. 43; 'Chronology', in Fried et al (eds), Guatemala in Rebellion (New York, Grove Press, 1983), p. 326-32.
16. Some respected commentators believe that this change came about at the US's bidding in particular. The Reagan administration, having placed some hope in the Rios Montt coup of 1982 had finally concluded that capitalism and dictatorships were incompatible. See Mario Monteforte Toledo in El Periodico (11 March 2001).
17. The CHC had its mandate extended on the basis that the one-year period originally agreed was for the purposes of investigation and that the drafting of the report was a separate matter.
18. 'Mandate and operational procedure', Guatemala, Memory of Silence, op. cit., paras 34-6. The bulk of the operational field work consisted of taking more than 20,000 testimonies. More than 2,000 communities were visited, some only once, others more than ten times.
19. The author attempted to persuade the Guatemalan jurist, Alberto Ballsels Tojo, to testify in the 1999 trial of three state paramilitaries for the massacre of 177 women and children in 1982, but the ex-commissioner felt the mandate did not allow him to do so. He did feel able, however, to present his testimony to the Spanish authorities investigating the complaint brought by Rigoberta Menchu in December 1999. This strict interpretation is at odds with the view of the CHC moderator, Christian Tomuschat, who stated that 'it would be totally inappropriate to maintain that the report can never serve as evidence if and when its findings may determine the outcome of proceedings. It is the relevant rules of procedure that must be used to determine whether such indirect proof can be relied upon in a case.' (C. Tomuschat, 'Clarification commission in Guatemala', Human Rights Quarterly (Vol. 23, no. 2, May 2001).)
20. Oslo Accord, see Guatemala, Memory of Silence, op. cit., p. 3. The Commission will invite those who may be in possession of relevant information to present their version of the facts, the non-appearance of interested parties shall not prevent the Commission from pronouncing on the cases.'
21. Weissbrodt and Fraser, op. cit., p. 609. See also C. Tomuschat, 'Human rights and national truth commissions', in Innovation and Inspiration: fifty years of the Universal Declaration of Human Rights (1999), 991-1011.
22. Weissbrodt and Fraser, op. cit., p. 609. See also C. Tomuschat, 'Human rights and national truth commissions', in Innovation and Inspiration: fifty years of the Universal Declaration of Human Rights (1999), 991-1011.
23. See the Guatemalan Criminal Procedure Code, articles 182-5.
24. See John Dugard, 'Reconciliation and justice, the South African experience', Transitional Law and Contemporary Problems (Vol. 8, Fall 1998), p. 277; Diane Orentlicher, 'Settling accounts, the duty to prosecute human rights violations of a prior regime', Yale Law Journal (Vol. 100), pp. 301-8. Dugard, writing in reference to the South African experience opposes the conclusions reached in Orentlicher's seminal work on the topic. Dugard's conclusion that the amnesty laws are consonant with internationally accepted standards is not shared by the author.
25. See John Dugard, 'Reconciliation and justice, the South African experience', Transitional Law and Contemporary Problems (Vol. 8, Fall 1998), p. 277; Diane Orentlicher, 'Settling accounts, the duty to prosecute human rights violations of a prior regime', Yale Law Journal (Vol. 100), pp. 301-8. Dugard, writing in reference to the South African experience opposes the conclusions reached in Orentlicher's seminal work on the topic. Dugard's conclusion that the amnesty laws are consonant with internationally accepted standards is not shared by the author.
26. Many efforts have been made to offer basic principles for the efficacious functioning of a truth commission: see P. Hayner, 'International guidelines for the creation and operation of truth commissions: a preliminary proposal', in Bassiouni (ed.), Law and Contemporary Problems, op. cit., p. 173; Chapman and Ball, 'The truth of truth commissions', Human Rights Quarterly (Vol. 23, 2001), give a more detailed analysis of the internal mechanics of truth bodies. While the focus of Dugard's paper, op. cit., is on South Africa, the guidelines appear to be for general application.
27. Many efforts have been made to offer basic principles for the efficacious functioning of a truth commission: see P. Hayner, 'International guidelines for the creation and operation of truth commissions: a preliminary proposal', in Bassiouni (ed.), Law and Contemporary Problems, op. cit., p. 173; Chapman and Ball, 'The truth of truth commissions', Human Rights Quarterly (Vol. 23, 2001), give a more detailed analysis of the internal mechanics of truth bodies. While the focus of Dugard's paper, op. cit., is on South Africa, the guidelines appear to be for general application.
28. Various amnesty laws were created during the Guatemalan conflict, the most notorious being a law of 1986 which seeks to prevent even the investigation, much less the bringing to trial, of human rights violations.
29. Law of National Reconciliation, 1996, article 8, see also recommendations 47 and 48 of Guatemala, Memory of Silence, op. cit.
30. Alfredo Balsells Tojo and Otilia Lux Coti, respectively.
31. Tomuschat, 'Human rights and national truth commissions', op. cit., p. 159.
32. See Guatemala, Memory of Silence, op. cit., p. 3 for the qualifications of the two Guatemalan members of the commission. One change was made in that Tomuschat was named instead of, as originally intended, the UN moderator of the peace process.
33. The Haitian model of seven commissioners with four nationals and three foreigners had similar aspects, but sought a broader sweep in political terms. See Fanny Benedetti, 'Haiti's truth and justice commission, the human rights brief, 1996, at 〈http://www.wcl.american.edu/pub/humright/brief/v3i3/haiti33.htm〉.
34. Dugard, 'Reconciliation and justice', op. cit., p. 287; see also Priscilla Hayner, 'Fifteen truth commissions, a comparative study', Human Rights Quarterly (Vol. 16, 1994), p. 600. The exact opposite seems to be suggested by the Inter-American Commission on Human Flights. See its report on the case of Ignacio Ellacuria et al v El Salvador, case 10.488 of the Inter-American Commission, para. 229.
35. Dugard, 'Reconciliation and justice', op. cit., p. 287; see also Priscilla Hayner, 'Fifteen truth commissions, a comparative study', Human Rights Quarterly (Vol. 16, 1994), p. 600. The exact opposite seems to be suggested by the Inter-American Commission on Human Flights. See its report on the case of Ignacio Ellacuria et al v El Salvador, case 10.488 of the Inter-American Commission, para. 229.
36. Jan Perlin, 'The domestic application of international human rights law: the case of the Guatemalan Historical Clarification Commission' in Carey and Pritchard (eds), International Humanitarian Law: origins, challenges and prospects (2000).
37. See Jaime Malamud-Goti, Game without End (University of Oklahoma Press, 1996).
38. See Weissbrodt and Fraser, op. cit., p. 620.
39. See Benedetti, op. cit.
40. See Hayner, 'Fifteen truth commissions', op. cit.
41. See 〈www.usip.org/library/truth.html〉.
42. See Hayner, op. cit.
43. It is interesting to note the content of para. 52 of the South African Truth and Reconciliation Comission's final report: The road to reconciliation requires more than forgiveness and respectful remembrance. It is, in this respect, worth remembering the difficult history of reconciliation between Afrikaners and white English-speaking South Africans after the devastating Anglo-Boer/South African War . . . Despite coexistence and participation with English-speaking South Africans in the political system that followed the war, it took many decades to rebuild relationships and redistribute resources . . . Reconciliation requires not only individual justice, but also social justice.' While no one would sensibly argue that social justice is not essential in the search for reconciliation, the question will always remain whether the South African model managed to treat the quest for individual justice as equally essential in the context of reconciliation.
44. Dugard, op. cit., accepts the figure of seventeen, while a narrower definition would put it at fourteen. See Chapman and Ball, op. cit.
45. Dugard, op. cit., accepts the figure of seventeen, while a narrower definition would put it at fourteen. See Chapman and Ball, op. cit.
46. For a sense of the complexity involved in such cases, one ought to consider the example of the International Criminal Tribunal for Former Yugoslavia. Operational in the Hague since 1993, it has concluded ten trials. It has had an annual budget of around $94 million each year and has hundreds of lawyers, policemen, analysts and investigators working on the investigation and prosecution of war crimes and crimes against humanity committed since 1993. The fact that an organisation with so much money and with unlimited political support from its backers can only achieve ten trials, almost all of relatively low standing in the military sense, ought to be a lesson to those seeking a quick fix in countries of much more limited resources and talent and with much more significant political pressures to deal with.
47. These cases are known respectively as the Rio Negro massacre and the Tuluche Killings (or the Noriega Case). It is also worth noting that three military personnel have been convicted for the killing of Bishop Juan Gerardi. Although this occurred after the end of the conflict, it should be seen as closely related to it, given that he was murdered two days after presenting the Catholic Church's report into the atrocities of the conflict. Three members of the military were sentenced to life imprisonment for the crime of extra-judicial execution. The conviction is under appeal at the time of writing.
48. 'No creo que en ese episodio macabre de 36 anos haya sido genocidio.' ('I do not believe that in this sad episode of 36 years there was genocide.') Quoted in El Periodico (30 June 1999).
49. Much has been written on the plight of the Guatemalan Mayan peoples. See for example, Carol Smith, Guatemalan Indians and the State: 1540 - 1988 (Austin, University of Texas Press, 1990); Robert Carmack, Harvest of Violence (University of Oklahoma Press, 1988); Susan Jonas, The Battle for Guatemala (Boulder, Westview Press, 1991); Ricardo Falla, Masacres de la Selva (Nicaragua, Latino Editores CRIES, 1992).
50. Much has been written on the plight of the Guatemalan Mayan peoples. See for example, Carol Smith, Guatemalan Indians and the State: 1540 - 1988 (Austin, University of Texas Press, 1990); Robert Carmack, Harvest of Violence (University of Oklahoma Press, 1988); Susan Jonas, The Battle for Guatemala (Boulder, Westview Press, 1991); Ricardo Falla, Masacres de la Selva (Nicaragua, Latino Editores CRIES, 1992).
51. Much has been written on the plight of the Guatemalan Mayan peoples. See for example, Carol Smith, Guatemalan Indians and the State: 1540 - 1988 (Austin, University of Texas Press, 1990); Robert Carmack, Harvest of Violence (University of Oklahoma Press, 1988); Susan Jonas, The Battle for Guatemala (Boulder, Westview Press, 1991); Ricardo Falla, Masacres de la Selva (Nicaragua, Latino Editores CRIES, 1992).
52. Much has been written on the plight of the Guatemalan Mayan peoples. See for example, Carol Smith, Guatemalan Indians and the State: 1540 - 1988 (Austin, University of Texas Press, 1990); Robert Carmack, Harvest of Violence (University of Oklahoma Press, 1988); Susan Jonas, The Battle for Guatemala (Boulder, Westview Press, 1991); Ricardo Falla, Masacres de la Selva (Nicaragua, Latino Editores CRIES, 1992).
53. See Ben Whitaker, UN Special Rapporteur on Genocide, 1985 Report; Ratner and Abrahams, Accountability in Human Rights Atrocities in International Law: beyond the Nuremberg legacy (Oxford, OUP, 1997).
54. See Ben Whitaker, UN Special Rapporteur on Genocide, 1985 Report; Ratner and Abrahams, Accountability in Human Rights Atrocities in International Law: beyond the Nuremberg legacy (Oxford, OUP, 1997).
55. Inaugural speech (14 January 2000).
56. 'Recommendations', Guatemala, Memory of Silence, op. cit., para. 84.
57. See interview with Alfredo Balsells Tojo in El Periodico (30 June 2001). 'The government wants to present the fulfilment of the recommendations of the CHC, but in no way does it comply with the spirit or the objectives. This is another document for export . . . The CHC recommended the establishment of an entity responsible for the support, promotion and vigilance over the fulfilment of the recommendations, by means of a law to endow it with security and permanence. It is more difficult to reform or repeal a legislative decree than a presidential accord, as this will always be subject to the personal whim or convenience of the president.' (free translation)
58. As a result of the state's failure to take the quest for either criminal or civil justice seriously, the petitioners in the case of the Plan de Sanchez massacre announced, on 18 July 2001, that they would withdraw from the still-born negotiations with the government over a possible settlement and ask the Inter-American Commission to remit the case to the Inter-American Court. The case deals with the massacre of 268 indigenous civilians by the Guatemalan army on 17 July 1982 and will be the first case of a massacre committed under the genocidal strategies of the military to be considered by the Inter-American Court. The issue of compensation for violation to the right to an effective remedy will be of significance to tens of thousands of Guatemalan families who may seek to pursue the same course of action.
59. Wole Soyinka, The Burden of Memory, the Muse of Forgiveness (Oxford, OUP, 1999), p. 28.
60. See Carlos Nino, Radical Evil On Trial (Yale University Press, 1996), p. vii. 'Massive human rights abuses involve what Kant called "radical evil" - offences against human dignity so widespread, persistent and organized that normal moral assessment seems inappropriate.'
61. 'Conclusions and recommendations, section III', Guatemala, Memory of Silence, op. cit., p. 49.
62. Soyinka, op. cit., p. 8.
63. Ignacio Ellacuria et al v El Salvador, op. cit.
64. See Orentlicher, op. cit..
65. This is not the place for a detailed treatment of the legal arguments in relation to the differences between a right to justice and the duty to prosecute. It is, however, worth noting the following: all principal international human rights treaties incorporate an explicit right to 'an effective remedy' or to 'judicial protection'. The Inter-American Court of Human Rights has also ruled that there exists an implicit obligation on all states to investigate, prosecute and punish those who violate human rights. Neither the explicit right nor the implicit duty categorically require the idea of criminal prosecutions. It is precisely here that the matter becomes legally debatable. To what extent does the right to an effective remedy allow a victim to demand a criminal prosecution? While it is true that those bodies charged with ensuring treaty compliance tend to allow states a wide discretion regarding the implementation of their obligations, it is also true that, on occasion, the same bodies have expressed precisely what measures would be necessary to constitute an effective remedy. Given the case-law that exists on this subject, it is difficult to believe that any such body would rule that a state can provide an effective remedy for the victims of crimes against humanity committed by the same state by anything other than criminal sanctions. Furthermore, where a state has ratified the Genocide Convention, and genocide is alleged to have been committed within its territory, the duty of that state to prosecute is clear and uncontroversial in terms of Article 6 of the Convention.
66. The decision to seek prosecutions by the victims or survivors is distinct from the public role of prosecuting authorities in most countries. Such authorities will, of course, have the right to seek prosecutions independent of the wishes of victims and survivors, should they feel they have sufficient evidence and that it is in the public interest. In practical terms, if such prosecutions are sought against the wishes of the victims or survivors, this leaves prosecutors at an immense disadvantage in terms of unwilling key witnesses and calls into question certain public interest concerns. In general terms, the crucial factor will be the willingness of victims to testify and take risks. To date very few, if any, prosecuting authorities have been the prime movers in such cases. Even the case of Argentina in 1984 responded to a movement generated during Alfonsin's election campaign.
67. See Nino, Radical Evil on Trial, op. cit., and Malamud-Goti, Game Without End, op. cit.
68. See Nino, Radical Evil on Trial, op. cit., and Malamud-Goti, Game Without End, op. cit.
69. The Centre for Human Rights Legal Action (CALDH), 〈www.caldh.org〉. The author has been the legal director of CALDH since July 1997 and is responsible for the legal and strategic planning of the prosecutions programme.
70. For information on the two cases, see 〈www.justiceforgenocide.org〉.
71. It is perhaps useful to mention briefly the case brought by Nobel Prize Winner Rigoberta Menchu before the Spanish courts on 2 December 1999, in relation to the crimes of genocide and terrorism under Spanish criminal law. That case was not admitted by the Spanish legal authorities on the basis that they were not satisfied that there was no possibility of justice being obtained in Guatemala. While the Menchu case achieved a great deal of international coverage, it seems that it has foundered on the rocks of realpolitik. The case was presented on the back of the Pinochet case at a time when it was too early to talk of precedents. Events have gone on to show how very few countries are prepared to mire themselves in the politics of high-profile extraditions. The invocation of 'universal justice' must be done on the basis of a full understanding of the details of international legal rules on extra-territorial jurisdiction and the political limits that circumscribe its practice. Otherwise, the quest for such justice may, in the long term, be less than helpful to the struggle against impunity. Any such efforts must be co-ordinated with national initiatives for justice and must be linked to serious consultation with all parties who have an interest as victims or survivors. The idea that extra-territorial prosecutions avoid the problems of intimidation and political obstruction requires careful scrutiny. Co-operation from originating states is essential for a successful prosecution. The political obstruction may simply also become a diplomatic headache which few states are prepared to take on. The issue of intimidation cannot simply be avoided by the foreignness of proceeedings. The witnesses have to return home at some stage. Unless all witnesses are given asylum, it seems that phenomenal courage is the only guarantee of witness participation.
72. Soyinka, op. cit., p. 31.