Guatemala and Efrain Rios Montt
by Geoff Pingree and Lisa Abend
The Nation magazine, October 9,
As dusk approached and a light rain fell
over Guatemala's Supreme Court plaza, Nobel Peace Prize recipient
Rigoberta Menchú sought to buoy the spirits of the human
rights activists, local clergy and Mayan women gathered there.
"The Supreme Court hasn't given the green light on judging
Ríos Montt yet," she said of the longstanding quest
to bring the former dictator to trial. "But don't lose hope;
we'll fight the rest of our lives to see there's full justice
for the genocide in Guatemala."
These days, the justice Menchú
hopes for is meted out, in large part, by the high courts of Spain.
First they went after Augusto Pinochet, Chile's former despot.
Then they trailed Adolfo Scilingo, the Argentine naval captain
who had scores of political dissidents thrown from planes. Now
Spain's National Court has a new target: former Guatemalan president
Efraín Ríos Montt.
The pursuit of Ríos Montt, along
with former president Oscar Mejia and other high officials, for
the torture and assassination of roughly 200,000 Mayans during
Guatemala's thirty-six-year civil war, makes Spain the world's
foremost practitioner of universal jurisdiction--a principle approving
prosecution beyond territorial boundaries in cases of especially
egregious crimes. Other countries have invoked the principle,
but since judge Baltasar Garzón ruled Pinochet eligible
in 1998 to be tried in Spain for crimes against humanity, the
country has taken the lead in prosecuting international human
rights violations. "Spain was a pioneer in taking on two
extremely important cases," says Alicia Gil, professor of
international law in Madrid. "And once the process began,
public opinion mobilized spectacularly behind it."
The Guatemala case dates to 1999, when
victims including Menchú--whose mother and brother were
tortured, and whose father was killed in a 1980 military attack
on the Spanish embassy--filed claims in Spain against Ríos
Montt and others for terrorism, genocide and torture. At the time,
Spain confined its jurisdiction to cases involving Spanish nationals,
allowing legal action on behalf of the Spaniards killed in the
embassy raid but preventing it for the Mayans, who were the military's
primary targets. In 2005, however, Spain broke new ground when
its Constitutional Court ruled that claims could be prosecuted
regardless of a victim's or perpetrator's nationality.
By June, Judge Santiago Pedraz was flying
to Guatemala to take testimony from the accused. No sooner had
he landed, though, than defense lawyers filed appeals that forced
Guatemala's Constitutional Court to suspend hearings indefinitely--and
set the solemn tone for the June 27 vigil where Menchú
spoke. Upon his return to Spain, Pedraz issued an international
arrest warrant for Ríos Montt and the others and froze
their assets. Because the two countries have no extradition treaty,
Guatemala's former president will not likely appear in a Spanish
courtroom anytime soon. Nevertheless, the international search
and capture order effectively prevents the accused from leaving
Guatemala. "We're closing the cage," says Almudena Bernabeu,
international attorney for San Francisco's Center for Justice
and Accountability, which represents the victims.
Why has Spain become so ardent an advocate
of universal jurisdiction? Garzón, never bashful about
public attention, is partly responsible. But history and politics
figure as well. Spain has focused on Latin American countries--former
colonies where prosecutions can be seen, notes Bernabeu, "as
an attempt to make amends." DePaul University law professor
and International Human Rights Law Institute president Cherif
Bassiouni dates Spain's interest in universal jurisdiction to
the country's 1970s legal battles against the Basque separatist
group ETA. "In order to prosecute ETA members hiding in France,
Spain developed extraterritorial criminal jurisdiction. From there,
it was easy to expand the concept."
Expand indeed. After Menchú's case
was restored, Spain's Committee to Support Tibet (CAT) appealed
its similarly rejected case against China--and won. Hence Judge
Ismael Moreno's pursuit of former Chinese president Jiang Zemin
and six fellow leaders for genocide against some 1 million Tibetans
from the 1950s to the 1990s, and Spain's similar investigation
of Jia Qinglin, former Secretary General of the Communist Party's
Municipal Committee, for genocide and torture of the Falun Gong.
Predictably, affected countries have cried
foul. China considers the investigation illegal interference and
calls the charges "an absolute lie," while Ríos
Montt's defenders have tarred Spain's inquiry as renewed imperialism.
Even some legal scholars--including universal jurisdiction supporters--believe
Spain has overreached. Gil faults classifying persecution for
political beliefs (rather than for nationality, ethnicity or religion)
as "genocide"--a characterization Spanish courts employed
because the country's penal code did not acknowledge "crimes
against humanity" until 2003.
For Bassiouni the problem is political.
"We're talking about heads of state, senior government officials,
who do bad things. Their counterparts would like to see them slapped
but don't want to face similar scrutiny. Consider Bush and Cheney.
They've authorized torture. Do you think they want to be investigated
by Spain?" Bernabeu recognizes the problem. "The most
important thing is to make a sustainable case," she says.
"We may need to target cases a bit more carefully, aim at
Universal jurisdiction's fate ultimately
depends on whether it is enforceable. Scilingo languishes in prison,
and in early September Chile's Supreme Court stripped Pinochet
of his immunity and said he was fit to stand trial--a decision
likely influenced by Spanish precedent. But if home countries
won't cooperate, international investigations stall, and no one
expects China--or Guatemala--to welcome prosecution or extradition.
In fact, Interpol Guatemala recently responded to the Spanish
arrest warrant with a statement asserting that Ríos Montt
and the others have no criminal charges pending against them in
Still, for human rights organizations,
Spain's prosecutions are victories. Bernabeu, who expects to be
in a Madrid courtroom with Guatemalan victims this fall, underscores
these prosecutions' importance. The accused, she points out, "are
now seen as criminals. In Guatemala it may be difficult to enforce,
but that doesn't take away the symbolic importance for the community.
This helps them heal their history."