Wednesday, August 24, 2011

Justice Cascade in Central America?

On August 8, nine Salvadoran former military officers turned themselves in to a military base in San Salvador, attempting to avoid arrest. It didn’t work: the officers were arrested by the Salvadoran police and jailed on an arrest warrant from a Spanish court, accusing them of involvement in the killings of six Spanish Jesuit priests, their housekeeper and her daughter in 1989. The crime was one of the most brutal and emblematic of that country’s civil war. An extradition request is expected soon.
On August 12, Guatemala arrested four alleged participants in the 1982 Plan de Sanchez massacre, in which almost 300 people were killed. The four are tobe tried soon. The arrests in that case follow close on the heels of the convictions last month of four kaibiles (Special Forces) for participation in another massacre in the hamlet of Dos Erres, and the arrest of the former army chief of staff for Rios Montt’s government, Oscar Mario López Fuentes, on genocide charges.
Two high-ranking former police officials are also in the dock accused of forced disappearances. One is Pedro Arredondo, former head of a secret police unit and the person widely believed to be responsible for the firebombing of the Spanish Embassy in 1980. The other is Hector Bol de la Cruz, who is being held in the disappearance of union leader Fernando Garcia; the police operatives in that case were tried and convicted last year. The evidence in the forced disappearance cases is believed to be largely based on the Police Archives discovered several years ago.
While advances in trying perpetrators of past human rights violations have led to hundreds of trials in the Southern Cone (written about here and here), until recently Central America provided a dismal counterexample.
Both El Salvador and Guatemala experienced military-dominated regimes that waged brutal counterinsurgency wars. The 12-year Salvadoran civil war, beginning in 1979, killed an estimated 75,000 people. Meanwhile, the 36-year Guatemalan conflict, originating in 1960, resulted in approximately 200,000 deaths, as well as genocide against some Mayan groups. The conflicts in El Salvador and Guatemala ended with the signing of peace accords and transitions to elected government, but the new governments continued to face constraints on democracy due to the persistent power of the military and economic elites over the political system.
In El Salvador (prior IntLawGrrls posts), the legislature passed a blanket amnesty law days after an internationally backed Truth Commission found that the military had committed massive human rights violations. The Supreme Court in 2003 allowed for exceptions to the amnesty law where fundamental rights were at issue, but the prosecutor has never seen fit to find a single case where he alleged that this was the case.
In Guatemala (prior IntLawGrrls posts), the Law of National Reconciliation provided for amnesty, but made the amnesty inapplicable to international crimes, including genocide, torture and forced disappearance. Nonetheless, the public prosecutor there never saw fit either to bring cases involving crimes relating to the conflict, and defendants used the courts to delay and sidetrack any investigations. A culture of impunity prevailed, kept in place not only by the former military but by drug cartels and gangs, some connected to former security forces.
So what’s happened to create the current movement?
In El Salvador, the election two years ago of a center-left journalist, Fernando Funes, moved the government from a position of implacable opposition to any weakening of the amnesty law to one where the government expressly left these decisions for the courts.
The Spanish case involving the Jesuit murders, although brought under Spain’s universal jurisdiction law, involves mostly Spanish citizens, and so is perhaps less of an intrusion on sovereignty. The Spanish judge heard extensive evidence in the case, including from two former prosecutors who now hold high ranking-positions in the government and on the Salvadoran Supreme Court, before issuing arrest warrants in May for 20 people. However, a majority of that court's members are still fairly conservative, and it’s not clear that they will grant the extradition request.
And for cases involving only Salvadoran citizens, the amnesty law is still a potent barrier.
In Guatemala, cases alleging genocide have been brought in both the domestic (2000 and 2001) and Spanish (1999) courts.
The Spanish case led to temporary arrests of some of the defendants in 2007, but the Constitutional Court denied the validity of Spanish arrest warrants in the case.
Although the Spanish case may have helped provide evidence and testimony and keep the issue alive, the big change has been the appointment of prosecutor Claudia Paz y Paz Bailey (right), about whom IntLawGrrls have posted. (photo credit) She is a long-time international criminal lawyer and human rights lawyer, and has taken decisive action to beef up her ability to try these cases -- many of which have been the subject of hearings before the Inter-American Commission and/or Court of Human Rights.
She needs to move fast, since the expected electoral victory of hardliner (and former military officer accused of crimes during the conflict) Otto Perez Molina will make her job more difficult. So we can expect more high-profile cases to be brought to trial in the next few months. Whether convictions can weather appeals in Guatemala’s conservative higher courts is anyone’s guess.
The U.S. government has taken an ambiguous stance with respect to these cases.
In the Guatemalan Dos Erres case, it arrested one former kaibil (who was sentenced to ten years in prison on visa fraud charges), deported a second back to Guatemala, and is seeking the extradition of a third from Canada.
On the other hand, the Department of Justice has so far refused to cooperate with the Spanish courts in the Jesuit case, even though one of those indicted in that case is residing openly in Massachusetts.
And the State Department has to date said nothing about the allegations that Guatemalan presidential candidate Perez Molina was involved in crimes against humanity during the 1980s, when he commanded a military outpost in the most hard-hit area of the country.
So far, it’s been the combination of internal changes and outside pressure that has managed to crack open a bit the façade of impunity. Those outside Central America owe it to the courageous people inside to keep that pressure up.

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