April 10, 2007

Universal Jurisdiction and Justice for Genocide in Guatemala

Join us on Tuesday, April 10, at 2 EST for an online discussion with Professor Naomi Roht-Arriaza, member of the Legal Advisory Council of the Center of Justice and Accountability (CJA) and Professor of Law at UC-Hastings College of the Law. Naomi is an expert on the suit that survivors filed in Spain against former Guatemalan General Efraín Ríos Montt. Ríos Montt remains free despite an international arrest warrant issued by Spain's National Court in July 2006, and has recently announced his intentions to run for a seat in Guatemala's Congress. On April 20, human rights activists across the country will be taking national action in support of efforts to bring Ríos Montt to justice. Naomi will be able to answer your questions about this case and survivors' efforts to bring charges of genocide forward in domestic and foreign courts.

• Learn more about AIUSA's work for international justice and accountability »
• Organize action in your local community to support survivors involved in the Guatemalan "genocide case" as part of a national action on April 20 »
• Learn more about Holocaust Remembrance Day from the U.S. Holocaust Memorial Museum »

Featured Guest: Naomi Roht-Arriaza

From our featured guest: "I look forward to fielding your questions and comments. "

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Question Submitted by Moderator:

Thank you for joining us, Naomi. To open today's chat, could you tell us how is universal jurisdiction being used in response to genocide?

Naomi Roht-Arriaza answers:

The Genocide Convention says that states must punish genocide. However, in many cases states can’t, or won’t, investigate and punish high-ranking officials of the state, who are those most likely to be involved in planning and committing genocide. Universal jurisdiction allows the national courts of a different country to investigate and, if warranted, prosecute those who have committed certain particularly heinous and/or difficult to prosecute international crimes without regard to the nationality of the parties involved or the territory where the acts took place.

The 1948 Genocide Convention does not by its terms create UJ, but it doesn’t preclude it either. Therefore, states can exercise UJ if they want to under the Convention. Certain other related crimes do require states to investigate and prosecute, at least if they find the offender in their territory. These include “grave breaches” of the Geneva Conventions and torture. While most prosecutions under UJ have been based on domestic laws allowing them, some have been based on customary international law. Over 120 states have some form of UJ in their national law.

UJ prosecutions can help fill an “impunity gap” when the national state is not prosecuting, and no international court has jurisdiction. For example, the Rome Statute of the ICC only allows investigations for crimes committed after 2002; for pre-2002 crimes, national prosecutions based on UJ are important. Even for post-2002 crimes, the ICC will only be able to prosecute a handful of cases, so UJ prosecutions will have to fill that gap as well.

UJ was long used for piracy and a few other international crimes. The first recent famous UJ prosecution was that of Eichmann, the Nazi functionary. The most well-known is probably the Spanish prosecution of Chilean dictator Augusto Pinochet. Pinochet was accused of genocide in Spanish courts, and was arrested when he arrived in London and held on a Spanish warrant. Even though he was eventually released for health reasons, when he got home he faced multiple charges stemming from his role in massive human rights violations, and was on the verge of being tried in local courts when he died. This case, along with others, shows the potential for UJ-based cases to serve as catalysts for domestic legal systems. In addition, in some cases a failure to extradite to a state requesting extradition as a result of a case brought under UJ can trigger a state’s “extradite or prosecute” legal obligations, for example with respect to torture.

In the last few years, there have been a number of other UJ-based cases involving crimes against humanity. In Spain, a judge has issued arrest warrants and extradition requests for ex-presidents and others involved in widespread atrocities in Guatemala, and another judge is investigating genocide in Tibet. Cases involving perpetrators found in their territory have been initiated in the Netherlands, Germany, the U.K., France, Denmark, Senegal, and other places. On the other hand, Belgium (under U.S. pressure) narrowed its UJ law, and Germany has so far refused to investigate U.S. officials for alleged crimes in Iraq and Guantánamo.


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Question Submitted by Babette:

Is there anything we can do to pressure the Guatemalan government to remove Gen. Montt's immunity.

Naomi Roht-Arriaza answers:

He doesn't have immunity as of now, at least not formally. If he is elected in November, he will gain parliamentary immunity. That immunity can be removed by the courts after a "pre-proceeding" to see if there's merit to the charges against him (a similar proceeding was used in Chile against Pinochet). So for now what's important is to ask the government to allow the courts to proceed without pressures, threats or political interference, and to make clear to the government that this is a test of the ability of the Guatemalan judicial system to act independently.
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Question Submitted by Lubes:

What is it that we can do to help?

Naomi Roht-Arriaza answers:

Here's the best thing to do (I'll repeat this info at the end of the chat):
As part of a national day of action for justice in Guatemala (April 20),
Amnesty activists and supporters across the U.S. are organizing Guatemalan
Consulate visits and solidarity events to bring attention to the case
against Ríos Montt. In addition to action at the Guatemalan Consulate in
New York City as part of the 12th annual Get on the Bus action
(www.gotb.org/), events are taking shape in Chicago, Denver, Detroit,
Houston, Los Angeles, Miami, Milwaukee, Portland, St. Louis,
Seattle/Tacoma, Washington, DC, and beyond. You can sign up to be a part
of a delegation for a Guatemalan Consulate visit or help organize an event
by signing up through the online form at
http://takeaction.amnestyusa.org/site/c.goJTI0OvElH/b.2575869/k.59D1/Natio
nal_Day_of_Action_for_Guatemala/apps/ka/ct/contactus.asp?c=goJTI0OvElH&b=2
575869&en=hhJJISOCLcJGKYNMLdIKKXPGIjJLI1OGKjKZLbNQJvG .

Beyond the April 20 National Day of Action, you and your group may
organize a postcard drive, express your concerns about the continuing
impunity for Ríos Montt in the form of a letter to the editor of your
local paper, or hold a film screening or other event to educate members of
your community and mobilize action on the case. For ideas for what you
can do in your community (and to learn more about the launch of a special
AIUSA film tour on international justice this fall), I encourage you to
contact Vienna, Lia and Emily of the IJA Program at ija@aiusa.org.

Supporting survivors' efforts to bring General Ríos Montt to justice is an
important part of AIUSA's ongoing work for international justice and
accountability. Please be sure to visit the international justice and
accountability website for more information and to take action online:
www.amnestyusa.org/international_justice.


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Question Submitted by Eugene:

Besides Rios Montt, who are other persons who might be subject to prosecution for crimes in Guatemala ? Are cases pending ?

Naomi Roht-Arriaza answers:

The case filed in Spain involves eight defendants: former Pres. Mejia Victores (who was also Rios Montt's Defense Minister), former army chief of staff Benedicto Lucas, former Interior/Security Minister Donaldo Alvarez Ruiz, former police chief German Chupina Barahona, former secret police head Pedro Arredondo, and former Defense Minister Angel Anibal Guevara. Of these, 2 are in custody,3 are in hiding and the rest are free. In addition, there is a domestic complaint alleging genocide that is stalled in Guatemalan courts: it adds some other defendants like Gen. Lopez Fuentes. There are a number of other high-ranking military officers, mostly retired, who might eventually be indicted. Several of the principal potential defendants, like Romeo Lucas Garcia and Hector Gramajo, have died.
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Question Submitted by roger:

how would you feel if it was someone you know that is lock up and mistreated and you could not talk to them or help them and there was no law or help for them. plus it has been proven that after 72 hours people will say anything to be free from the mistreatment.

Naomi Roht-Arriaza answers:

I would feel lousy.
That's why it's important to prevent and punish state authorities who commit these kinds of violations.
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Question Submitted by Aria:

Could you give us the background on these cases of genocide in Guatemala? When did they happen, under what circumstances, and whom did they and do they now affect?

Naomi Roht-Arriaza answers:

How far back to do you want to go? Assuming you don't mean the Spanish conquest, the recent history started in 1954, when a democratically elected reform-minded government was overthrown with the help of the CIA. A series of military dictatorships followed, which by the mid 1970s had created significant opposition. During that time opposition politicians were killed off or went into exile (including, at one point, Rios Montt!) and students, trade unionists and peasant organizers were killed by the thousands. Armed opposition groups sprung up, mostly in the heavily Mayan west of the country. The army first employed selective repression against Mayan communities, killing off leaders (including traditional authorities) and anyone thought to be supporting these opposition groups. By the early 1980s, and especially after the 1982 coup that brought Rios Montt to power, selective repression turned into large-scale scorched earth policies. Over 600 villages were wiped off the face of the earth, women, children and old people were targeted, survivors of massacres were chased into the jungle and hunted down, their crops and food sources destroyed so that they would starve. The army decided that certain Mayan groups (including ixiles, achies, and some others) were per se subversive and thus had to be wiped out. That's the basis for the genocide charge. The official U.N. sponsored Truth Commission found that over 200,000 people were killed during the conflict, most during that early 1980s period.
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Question Submitted by Jillian:

What exactly is Plan Sofia (the document that just came to light) and what are the implications for the genocide case?

Naomi Roht-Arriaza answers:

For one thing, we'd really like to get hold of it, but the public prosecutor's office apparently is not letting anyone see it!
I understand this is an offshoot of a document we know exists, called Plan Victoria 82, and it supposedly links Rios Montt directly to orders to wipe out communities. This would obviously be important for proving the existence of an intent to destroy a group, which is what we need to show to prove genocide. The military has denied there's any such thing, but then again they've denied the existence of lots of other documents that were then found.
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Question Submitted by Valerian E. Agbaw-Ebai:

The proliferation of so-called "Truth & Reconciliation" commissions in countries emerging from conflicts in which some of the most grotesque campaigns of human savagery and barbarism occurred is fast becoming an international pastime. The bottomline is,genocide perpetrators go scot-free after "confessing" their crimes against humanity. So,can the transnational justice system intervene to hold perpertrators to account in a situation where the country in question; a sovereign member of the United Nations has opted for a TRC to heal its past and move forward? If yes, what are the international legal instruments that trump national sovereingty? If no, what should the international community do to stop the impunity and make sure such crimes don't go unpunished?

Naomi Roht-Arriaza answers:

Truth commissions need not be substitutes for prosecutions of genocide, although some governments have tried to use them that way. More recently, there have been efforts to combine TRCs and some prosecutions, for example in Sierra Leone and East Timor. In other places, prosecutions have happened after TRCs, even where the intent of the TRC was to put off the issue of prosecutions. Countries like Argentina, Chile, Peru and even Guatemala all had truth commissions, but are also all prosecuting human rights-related crimes to a greater or lesser extent. It's only in South Africa that you got a trade-off of confession for non-prosecution, and even there most military and security force people never asked for amnesty, and so prosecution is not barred. But the South African model hasn't been followed anywhere else.
As to international legal instruments, start with the Genocide Convention, 1949 Geneva Conventions "grave breaches" provisions, Convention against Torture, and most recently Convention Against Enforced Disappearances, as sources of a treaty obligation to investigate and prosecute.
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Question Submitted by matt:

as a matter of clarification, my question was with regard to the U.S. gov't allowing the genocide to occur in the first place.

Naomi Roht-Arriaza answers:

The Guatemalan military, like that of other Latin American states, was trained in the School of the Americas; Guatemalan intelligence services also received help from Israel, Taiwan and South Africa. And the U.S. was responsible for the 1954 coup that started the string of dictatorships that continued until the late 1980s. However, the U.S. role during the early 1980s was indirect: aid was cut off by the Carter administration, and Congress balked at sending some aid. However, once the Reagan administration came to power in 1980, support resumed for the military, although it was done quietly and to a large extent through the use of proxies.
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Question Submitted by Victor Munguía:

The case of Efrain Rios Montt is not a single one. The names of Augusto Pinochet, Alberto Fujimori and many more criminals come to our minds when we speak about this subject. My question is HOW GOOD ARE OUR EFFORTS IF THOSE ARE DIRECTED TO HAVE GENOCIDES AND HUMAN RIGHTS VIOLATORS BEFORE THEIR NATIONAL COURTS ? By our experience, is well known that impunity is more than a chance at national courts when these indiviudals face them. It is a local jurisdiction guarantee of due process ? It is not the international community interest to stop impunity ? It is time to open the path to have these case before an international criminal court ? In the meanwhile it is possible that the countries involved in these cases to delegate jurisdiction to an special criminal court ?

Naomi Roht-Arriaza answers:

Your concern is precisely the reason why the complainants in Guatemala brought a case before the Spanish courts, while other complainants are also trying to use the national courts. It's important to do both: the transnational cases can help open up space and bring pressure on the national courts to do their job rather than be pressured to continue impunity. But if we don't keep pressuring the national courts, they will never change. The experience elsewhere in Latin America shows that it is possible to get the national courts to work, even in the face of historical impunity. It just takes time and continuing pressure. Meanwhile, the transnational case based in Spain can hear witnesses and try to extradite the defendants.
As to the existing International Criminal Court, it has no jurisdiction over pre-2002 crimes. Theoretically, a special court could be set up, but there is no funding or political will in the international system to create more ad-hoc or special courts.
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Question Submitted by Ilhan:

We have experienced that most military coups genocide(d) people just because of their being oppositional. Therefore I think the term genocide needs to be redefined and broaden. For example, another group of victims, political oppositional groups or dissidents should be added into the definition. What do you think about this? Thanks.

Naomi Roht-Arriaza answers:

The Genocide Convention was drafted in the late 1940s. At the time, political dissidents were specifically excluded from the definition of protected groups. There was some feeling that there was something worse about targeting groups based on immutable characteristics that the group members could not change. There was also the political problem that Josef Stalin would not support a treaty that included political opponents within the protected groups. That's why the Convention looks the way it does.
To some extent, the gap or hole in the Convention is filled by "crimes against humanity" which covers widespread or systematic attacks on a civilian population, which can include political dissidents. But it's not complete: for example, Spanish law allows universal jurisdiction for genocide but doesn't explicitly mention crimes against humanity.
The Spanish courts have used a definition of "national group" that covers any portion of a group found to be against the "national project" of the perpetrator. That broadens the definition a bit, but hasn't been widely accepted.
If it were up to me, I'd redraft the definition to reflect a concern with targeting groups as such, without regard to what kind of groups. could be old people, AIDs sufferers, gays and lesbians, etc. But when that possibility was raised in 1998 during the drafting of the Rome Statute for the ICC, states didn't agree to modify the definition. So it's politically a non-starter.
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Question Submitted by Ann:

There is plenty of news on this topic Genocide coming out of Sudan and nothing on SA. If there is Genocide in Guatemala, why is it that we (in Canada) have heard so little about it? I would also like to know what part the Canadian Government is playing in the fight for international justice and accountability and what amount of aid is given to support survivors involved in the Guatemalan "genocide case?

Naomi Roht-Arriaza answers:

The genocide in Guatemala took place in the early 1980s, not now (although human rights violations continue now, especially against women and rural communities). That's why you don't hear about it now. At the time, you didn't hear because there was very little news coverage -- events in Guatemala were eclipsed by El Salvador and Nicaragua, and Mayan indians being killed didn't seem to create a lot of international concern.
As to the victims, there have been a few attempts to provide reparations: in a number of cases, the Inter-American Court of Human Rights has ordered the state to pay compensation and provide services, as well as an apology, to the victims. However, this only encompasses those people who bring their cases to the Inter-American system (a tiny fraction). And there is a National Reparations Program, but it has been very slow and will only provide minimal help to most victims.
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Question Submitted by Elisabeth:

Filing a lawsuit against U.S. actors who committed torture on U.S. soil, how do I establish universal jurisdiction?

Naomi Roht-Arriaza answers:

That's prohibited by U.S. law. See also the case filed in Germany under universal jurisdiction alleging that Donald Rumsfeld, Gen. Sanchez and others committed torture in Iraq and Guantanamo. The case has been resubmitted and is being considered by the German prosecutor. More info:
ccr-ny.org.
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Question Submitted by Matthew:

Is it ever necessary to forgive the crimes of such a man in order to allow a society to move on? (for example, Joseph Kony in Uganda) Also, why aren't U.S. officials ever tried for war crimes for supporting/putting into power these men?

Naomi Roht-Arriaza answers:

I think it may be necessary to put off prosecutions for a while and even to allow lower-ranked or coerced actors (like the child soldiers in Uganda) to submit to less formal forms of sanction, but I think the lesson of history, as well as the requirements of internaitonal law, show that forgiving and forgetting doesn't work. If you allow impunity, you set the stage for the next conflict.
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Question Submitted by David:

After the Holocaust world governments said never again. After Rwanda world governments said never again. Why do you feel like AGAIN this genocide is being ignored?

Naomi Roht-Arriaza answers:

We still don't have adequate tools, and adequate will among governments, to make the slogan a reality. We're getting a little better - at least there's a sense among many ordinary people that the status quo is unacceptable, but governments often prefer to ignore genocide. See Darfur. In the Guatemalan case, at the time the U.S. was engaged in the cold war, and saw everything through a cold war lens. So they supported the military who told them they were fighting communism.
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Question Submitted by Jillian:

What is stalling the processing of the Guevara and Chupina, who are already in custody?

Naomi Roht-Arriaza answers:

The whole case was stalled by appeals on grounds that the Spanish courts had no jurisdiction. The Constitutional Court asked the lower court to rule on that question, which they did about a week ago, finding that jurisdiction did exist. So now the whole case should move forward again. We have no doubt there will be further appeals -- the appeals procedure in Guatemala allows for repetitive appeals. That's why we need support so that the courts see that people are watching and that they cannot simply sit on the appeals but must decide them.
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Question Submitted by Claire:

Sometimes issues like these appear very complicated from a legal perspective. How do you suggest I approach students at my school to emphasize that you don't need to be a lawyer or legal expert to make a difference in this case?

Naomi Roht-Arriaza answers:

On some level, this is really straightforward: people were responsible for ordering and planning horrible crimes, and their own justice system has not done anything about it because they held (and in some cases hold) a great deal of power in the society. These are crimes that states have agreed must be punished, so if that isn't being done in Guatemala it can be done elsewhere. You don't need to be a lawyer to see that that makes sense. We need regular people to care enough to let the Guatemalan government know we're watching,and will take note of how they act.
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Question Submitted by Jay:

Is it more effective to file a suit for arresting him at International Criminal Court?

Naomi Roht-Arriaza answers:

Can't be done. ICC has no jurisdiction over pre-2002 crimes.
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Question Submitted by sigrid:

Do you think the case against Rios Montt is strong enough for him to actually be punished? What are the chances of him winning a seat in Congress?

Naomi Roht-Arriaza answers:

The case is pretty strong. If he's actually extradited I'd say there's a good chance. If he isn't it may take a bit longer.
He will probably win if he runs for Congress. His party has one of the few organized political bases in the country.
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Question Submitted by Matt:

What are the U.S. political interests with regard to Guatemala that seem to be stopping our country from taking action against this sort of abuse. If we wanted to reform the situation there, we have the political tools to do so. What's stopping us?

Naomi Roht-Arriaza answers:

The current interests of the U.S. in Guatemala have to do with immigration, drug and people smuggling, and the Central American Free Trade Agreement. There's not much political pressure on the U.S. to pressure the Guatemalans to do something to prosecute crimes that are now over 20 years old. It would be helpful for Congress to weigh in here.
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Question Submitted by Jillian:

If Rios Montt does gain immunity (doesn't he file on May 2nd?), how would the case proceed?

Naomi Roht-Arriaza answers:

His immunity would not be effective in Spain - after all, Pinochet had parliamentary immunity too. So the Spanish case would proceed.
Technically, extradition is an administrative not criminal proceeding in Guatemala, and his immunity covers criminal and civil proceedings. If the local courts think he's nonetheless covered, there's a pre-proceeding in the courts to remove his immunity. That is what would have to happen.
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Question Submitted by Vienna:

What's the message we should be sending to the Guatemalan government right now?

Naomi Roht-Arriaza answers:

As part of a national day of action for justice in Guatemala (April 20),
Amnesty activists and supporters across the U.S. are organizing Guatemalan
Consulate visits and solidarity events to bring attention to the case
against Ríos Montt. In addition to action at the Guatemalan Consulate in
New York City as part of the 12th annual Get on the Bus action
(www.gotb.org/), events are taking shape in Chicago, Denver, Detroit,
Houston, Los Angeles, Miami, Milwaukee, Portland, St. Louis,
Seattle/Tacoma, Washington, DC, and beyond. You can sign up to be a part
of a delegation for a Guatemalan Consulate visit or help organize an event
by signing up through the online form at
http://takeaction.amnestyusa.org/site/c.goJTI0OvElH/b.2575869/k.59D1/Natio
nal_Day_of_Action_for_Guatemala/apps/ka/ct/contactus.asp?c=goJTI0OvElH&b=2
575869&en=hhJJISOCLcJGKYNMLdIKKXPGIjJLI1OGKjKZLbNQJvG .

Beyond the April 20 National Day of Action, you and your group may
organize a postcard drive, express your concerns about the continuing
impunity for Ríos Montt in the form of a letter to the editor of your
local paper, or hold a film screening or other event to educate members of
your community and mobilize action on the case. For ideas for what you
can do in your community (and to learn more about the launch of a special
AIUSA film tour on international justice this fall), I encourage you to
contact Vienna, Lia and Emily of the IJA Program at ija@aiusa.org.

Supporting survivors' efforts to bring General Ríos Montt to justice is an
important part of AIUSA's ongoing work for international justice and
accountability. Please be sure to visit the international justice and
accountability website for more information and to take action online:
www.amnestyusa.org/international_justice.

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Question Submitted by Jillian:

Is there anyone is the United States that we can prosecute for their role in supporting the Guatemalan military?

Naomi Roht-Arriaza answers:

You would run into issues of government immunity in trying to do so. Also, in our system prosecutors have discretion to bring cases, or not, and it would be hard to find a prosecutor willing to do this.
However, there's lots of info on U.s. complicity, and it would be important to raise that info in pushing for Congress and the gov't to support the Spanish prosecution. See the Guatemalan archives of the National SEcurity Archive for a taste.
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