When Grave Crimes Elude Justice

An intense drama has been unfolding in Guatemala over the trial of the country’s former military ruler, Efraín Ríos Montt. On May 10, after a six-week trial marked by many twists and turns, Ríos Montt was convicted of genocide and sentenced to 80 years in jail. Ten days later, the country’s Constitutional Court, in a questionable 3-2 decision, overturned the verdict, and left an uncertain future for what had briefly seemed an exceptional achievement.

This judicial roller-coaster ride has been bitterly disappointing to those Guatemalans who have worked for years to hold Ríos Montt accountable for overseeing, during his 17 months in power in the early 1980s, some of the worst crimes of a conflict that left tens of thousands dead or missing. But the eventual outcome will have implications far beyond Guatemala’s borders.

For the world at large, this first-ever domestic genocide trial of a former head of state is a high profile test of whether national courts and governments, not just international tribunals, can fulfill their responsibility to pursue justice for grave crimes. This is no minor question, at a time when the international justice movement as a whole is struggling, most evidently in the travails of its most ambitious project, the International Criminal Court.

Since it was set up just over a decade ago, the I.C.C. has convicted only one defendant, a former Congolese warlord, Thomas Lubanga, who was found guilty in March last year of using child soldiers. Last December, the court acquitted another Congolese military leader, Matthieu Ngudjolo, after failing to credit a number of prosecution witnesses. Earlier this year, after a witness recanted testimony that made it impossible to sustain a case, the I.C.C. prosecutor withdrew charges against one of four senior Kenyan officials charged with orchestrating post-election violence in 2007-08.

This April, an I.C.C. judge chastised the prosecutor’s failure to investigate properly prior to confirming charges against Uhuru Kenyatta, now president of Kenya, and underscored “grave problems in the prosecution’s system of evidence review, as well as a serious lack of proper oversight by senior prosecution staff.”

Other international tribunals are also in difficulty. At the International Criminal Tribunal for the Former Yugoslavia, convictions of its two most senior Croatian defendants were overturned in mid-November 2012. Two weeks later, the court acquitted for the second time Ramush Haradinaj, Kosovo’s former prime minister, in a case some prosecutors warned should never have been brought. However legally well-founded, and notwithstanding the positive record of the tribunal overall, these rulings have unfortunately reinforced a widespread (and false) misimpression about alleged anti-Serb bias in the court and complicated its contribution to reconciliation throughout the former Yugoslavia.

Half a world away, in Cambodia, this March, the death of former Khmer Rouge leader Ieng Sary, left a U.N.-backed tribunal that has convicted just one person in seven years with only two remaining defendants. Donor fatigue and Cambodian government opposition will likely prevent any further trials of crimes by a regime that brought about more than 1.5 million deaths in the 1970s.

In April, in an apparent act of intimidation, hackers published on a Lebanese news Web site the names of previously secret witnesses in the trial by a U.N.-supported Special Tribunal for Lebanon of those responsible for the 2005 killing of former Prime Minister Rafik Hariri. The court’s progress has been slowed, in part, by attacks on its team in Beirut.

With a new generation of leadership, and reinvigorated backing from the international community, the I.C.C. must, and will surely, right itself. But no international court can address more than a fraction of the crimes awaiting judicial scrutiny — hence the importance of national trials for international crimes.

The reversal of fortune in Guatemala graphically illustrates the challenges that can stand in the way of local judicial processes. But the factors that have advanced the case against Ríos Montt have not changed; indeed, they provide an inspiration for those around the world, in Haiti, Kenya, Sri Lanka and even in the United States, who would wish to see justice done for serious offences.

First, the case against the former general was brought by an attorney general, Claudia Paz y Paz; and it has been tried by first instance judges, including Jazmín Barrios, who each showed determination and courage in braving threats of violence to do their jobs. Second, several NGOs worked tirelessly for more than a decade to gather and preserve forensic and documentary evidence, to support victims to come forward and give testimony, and to educate the wider public about what was at stake. Third, the diplomatic community underscored the proceeding’s importance with unusual consistency and unity. During the trial, notwithstanding the troubling role of the Reagan administration in backing Ríos Montt in the 1980s, U.S. envoys offered backing for the process through visits to the courtroom, public statements and meetings with Guatemalan officials.

The very act of bringing Ríos Montt to trial has already accomplished much: in allowing victims to speak openly about what they suffered, stimulating public debate, and methodically setting forth in a 700-page opinion the extensive record of criminality.

But with this same combination of capable judicial actors, amplified victim voices and sustained international pressure, Guatemala can still demonstrate the power of local justice to deliver extraordinary results.

About the author: James A. Goldston is the executive director of the Open Society Justice Initiative.

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