Historical Overview: Justice in Guatemala
The transition from war to peace has been long and problematic for Guatemala. Corruption and impunity have remained major problems throughout the post-war period, and those responsible for abuses during the conflict retain significant political and financial power today. The rise in power and influence of narcotraficantes has made the situation worse, turning Guatemala into what one ex-Foreign Minister termed a “kingdom of impunity.” Despite the creation of the United Nations sponsored International Commission Against Impunity in Guatemala (CICIG) in 2006, Guatemala’s weak and corrupt law enforcement and judicial agencies have in many ways failed to implement the rule of law.
CICIG provided a way for international prosecutors to assist Guatemala’s Attorney General’s office in the prosecution of sensitive cases that may otherwise have been shelved. Unfortunately, CICIG’s mandate did not include investigating crimes from the 36-year civil war, which is extremely problematic because the lack of accountability for past atrocities directly informs the systemic nature of impunity today. Many of the alleged perpetrators of genocide and crimes against humanity during the conflict, for example, continue to hold power within the military, political, and business communities.
In recent years courageous efforts by Guatemalan Attorney General Claudia Paz y Paz to fight impunity, supported by domestic and international human rights organizations, have begun to bear fruit. However, prosecutions for “high risk” crimes such as genocide, corruption, human rights violations, narcotics and human trafficking, and gender violence continue to endanger all involved.
The Guatemalan Criminal Justice System
Since 1994, the Guatemalan judicial system has largely resembled the adversarial system of the United States. The various stages of a criminal prosecution in Guatemala correspond roughly to those of a U.S. criminal case, including a probable cause hearing (to establish that the prosecution has sufficient evidence to charge a defendant), an oral trial (an adversarial presentation of evidence and witnesses to to determine guilt), and an appeals procedure. The main difference, however, is that a judge or panel of judges – instead of a jury – determines the guilt of the accused. Thus judges in Guatemala in some ways have even more power than U.S. judges, which makes it unsurprising that they continue to face serious security threats.
Courts for High Risk Crimes
Like most of post-conflict Latin America, Guatemala’s state institutions are still evolving. Since 2000 Guatemala’s judicial system has departed somewhat from the U.S. criminal justice model and has added elements that are similar to Spain’s criminal justice system. Spanish law allows ordinary citizens to pursue criminal actions by filing criminal complaints directly with investigative judges. Click here for more information on the Spanish National Court. In Guatemala individual citizens cannot pursue criminal actions in this way, but they can file formal denuncias with the court and join an ongoing criminal case as civil parties. Thus unlike in the United States, where individual victims have no official role in a criminal trial – they only have standing to bring a civil suit against individuals, organizations, or the government – Guatemalan citizens have the ability “join” a criminal case and become party to the litigation. This allows victims to participate in the trial more than in the U.S. and receive compensation if the accused perpetrators are found guilty of the criminal charges. Although state prosecutors are officially conducting the criminal litigation, due to ongoing problems with corruption, a lack of resources, and the increased technical demands many important cases require sometimes lawyers representing the civil parties have been instrumental in moving criminal prosecutions forward.
In 2009, with pressure from international actors, Guatemala’s Supreme Court created special Courts with competence to process the most problematic of cases – the Tribunales de Mayor Riesgo (Courts for High Risk Crimes). These Courts have the authority to hear cases that pose a serious risk to the judges, the prosecutor, the defendant(s) and the defense attorney, or anyone else involved in the case. Due to the extent to which Guatemala’s judicial, police, and military institutions have historically been infiltrated by organized crime, in conjunction with limited financial and technical resources, the country is often ranked as one of the most corrupt and impunity-riddled states in the world. There have been times in the recent past when judges wore masks or otherwise hid their identity while presiding over cases against powerful individuals. The judges of the Courts for High Risk Crimes were thus given additional resources and security in hopes that they could focus solely on cases against powerful or dangerous individuals. The Courts are tasked with investigating cases that implicate people in positions of state power (currently or in the past), but they also heard cases involving corruption, gang related killings, drug traffickers, genocide, and gender violence.
In Guatemala, when prosecutions involve powerful and important individuals – past or current government officials, high powered gang members, members of the military or paramilitary organizations, etc. – they are handled by the Courts for High Risk Crimes. These Courts were established to help strengthen the independence of the Guatemalan judiciary and fight against corruption and the increased security threats faced by judges, lawyers, and others involved in prosecuting and defending powerful individuals. The Supreme Court Decree (No. 21-2009) that established the competency of these courts explicitly outlines a specific list of requirements that must be present before cases can be removed for adjudication by these special courts. Among other requirements, the Courts only have competency to hear cases involving specific crimes such as genocide, torture, crimes against humanity, and crimes related to organized crime laws such as money laundering, drug trafficking, and the financing of terrorism.
The judges assigned to the Courts for High Risk Crimes are considered the most competent and most able to move these delicate cases forward, yet because of this they also face some of the most serious security threats. The Court itself is located in Guatemala City, and all cases classified as “high risk” are transferred there regardless of the jurisdiction where the crimes occurred. Moving the cases to the city helps alleviate the risk and pressures that local judges would face while trying to adjudicate a case in the same community where the defendants hold considerable power. It also allows the court to have access to the best facilities, technology, and security personnel available in the country. Unfortunately, some observers have expressed concern that even with the improved surroundings the expectations of the tribunals are not being met. Specifically, the international NGO Lawyers Without Borders (ASF) has noted that although the facilities and technology afforded to those who work in the High Risk Tribunals are far superior to that of other courts, many of the judges who work on these historic and high-profile cases continue to do so without adequate security.
Despite resource limitations and continued security concerns, the project is beginning to make significant progress. In 2011 and 2012 the Courts for High Risk Crimes handed down several historic convictions: five former military officers were indicted for their involvement in the Dos Erres Massacre of 1982; and five paramilitaries were convicted for their role in the Plan de Sanchez massacre. Another significant step for these courts is on the horizon . On March 19th, 2013 the trial against Ex-Dictator Efraín Rios Montt for genocide and crimes against humanity will begin, marking an emblematic and unprecedented chapter in both the Guatemalan and international campaign for justice and human rights.