by Mariana Rodriguez Pareja & Salvador Herencia Carrasco on 23 Aug 2011 | Comments
A beautiful and cultural tourist destination, Guatemala hides the scars of a very violent past. It has been the scene of ruthless and unthinkable human rights violations, with little accountability for perpetrators of vast injustices. Its people have witnessed the fissure of their society’s thread, especially as many victims of these violations have almost always been forgotten by the State. In order to completely reconcile its past and consolidate it with a strong future, Guatemala should ratify the Rome Statute, a treaty in international criminal justice that allows for victim participation in proceedings at the International Criminal Court – the first permanent international criminal court capable of trying individual perpetrators of genocide, war crimes, and crimes against humanity.
Between 1960 and 1996, Guatemala was devastated by violence and genocide resulting in the death of 200,000 people and victimizing an entire nation. According to the report by Guatemala’s Truth and Reconciliation Commission, Comisión para el Esclarecimiento Histórico- Memoria del Silencio, government forces under the de facto presidency of General Efrain Rios Montt were found to have committed more than 600 massacres, homicide, forced disappearances, and other horrendous crimes, particularly against rural and indigenous communities.
One such massacre occurred on 6 December 1982 in the small village of Las Dos Erres, where government forces assassinated 200 people, including women and children. On 2 August 2011, a local tribunal in Guatemala City sentenced four former soldiers from an elite unit of the Armed Forces to 6006 years each, a welcome verdict for the hundreds of victims and the community. Although the trial was barely addressed in the local media, it served to advance the country’s process of recovery and set an important precedent for justice in Guatemala.
Regional Acceptance of the Rome Statute
As stated in a previous post on this website, Latin America has showed a true commitment towards the principles that build the Rome Statute . As of August 2011, 116 states have ratified the Rome Statute, including 15 of 19 Latin American countries, thereby demonstrating the commitment from the world and region to ending impunity and adhering to the rule of law. Furthermore, there is an explicit degree of commitment and participation at the ICC from high-level officials from Latin America: the ICC Chief Prosecutor, Luis Moreno-Ocampo, comes from Argentina; as well, many judges from Latin America serving on the ICC judicial bench, from Costa Rica, from Bolivia, from Brazil and Argentina.
On the other hand, Latin American courts have interpreted and applied international criminal law vis-à-vis their international obligations, especially the American Convention on Human Rights, to prosecute perpetrators of grave violations of human rights and crimes against humanity. Given this commitment and regional effort to end impunity, what is delaying Guatemala’s ratification of the Rome Statute?
Political factors play a major role in delaying Guatemala’s ratification, as there continues to be opposition within sectors of Congress. Given that the government established a truth and reconciliation commission and pursued other initiatives to address past human rights violations in the country, certain officials have justified focusing on those efforts as a means to avoid the question of ratifying the Rome Statute.
Legally, Guatemala has no impediment to ratifying the treaty. In 2002, the Constitutional Court rendered a favorable opinion whereby no constitutional amendment is needed in order to ratify the ICC. In 2006, the Foreign Affairs Commission of the Congress of the Republic rendered another report favorable to Guatemala’s ratification of the Statute, but since then the process has been stalled and the draft has not been discussed in the Plenary.
Despite some adverse political feelings to ratifying among certain officials, ICC Prosecutor Moreno-Ocampo, together with President of the Assembly of States Parties (ASP) of the ICC Ambassador Christian Wenaweser, visited the country in 2010 to meet with parliamentarians. The visit was upon request by the government, in order to discuss the ICC with different stakeholders and to answer all questions and clear misconceptions, especially regarding the temporal jurisdiction and non-retroactivity of the Court.
The human rights violations committed for 36 years must be addressed by the Guatemalan state or by tribunals that have jurisdiction. Numerous local organizations continue to advocate for justice for victims of atrocity crimes committed in Guatemala and have pursued cases involving human rights violations, including genocide. The Comisión Internacional contra la Impunidad en Guatemala (CICIG), an independent international body charged with investigating and prosecuting grave crimes in Guatemala, is fundamental for national efforts to end impunity.
Despite the lack of comprehensive legislation on international criminal law in the country, many of its core principles are already binding on the state through the 1969 American Convention on Human Rights and the rulings of the Inter-American Court of Human Rights. In addition, the letter of the Rome Statute and several rulings by ad-hoc tribunals (e.g. the International Criminal Tribunals for the Former Yugoslavia and Rwanda) are serving as valid interpretative tools for human rights defenders to claim justice before other tribunals, especially before the Audiencia Nacional in Spain, which applies universal jurisdiction.
When a country joins the ICC it does not exclude any other means of justice. The ICC is a Court of last resort and states that become parties to the Rome Statute, its founding treaty, accept that if they are unable or unwilling to prosecute the grave crimes contained in the Statute the ICC shall apply its jurisdiction to bring those criminals to justice.
The Rome Statute system is an exceptional mechanism and Guatemala’s ratification of the treaty will contribute to strengthening its judicial system and rule of law throughout the country. It is in fact the most effective instrument to prevent atrocities, and it is fundamental to securing a lasting peace.
Mariana Rodriguez Pareja is a Communications Expert and Human Rights Advocate. Twitter: @maritaerrepe
Salvador Herencia Carrasco. LL.M. University of Ottawa, Legal adviser of the Andean Commission of Jurists. E-mail: email@example.com