Transitional justice and genocide denialism in Guatemala: bill 5377 and the specter of impunity

Theresa Reinold

Theresa Reinold is a Professor for Political Science at the University of Duisburg-Essen.

In the 20th century Guatemala was the site of an extremely deadly internal conflict which escalated into genocide and which claimed the lives of about 200.000 people. It was Guatemala’s indigenous population that was hardest hit by the military government’s campaign of extermination. After the end of the civil war in 1996, various transitional justice (TJ) measures were implemented, including the establishment of two truth commissions and domestic prosecutions of those responsible for the worst atrocities. In more than a dozen verdicts, 33 former army officials, military commissioners, members of the civil defense patrols, as well as one former rebel leader were convicted of mass atrocities. 14 additional suspects are currently awaiting trial. Prosecutorial efforts culminated in the genocide trial against former President Efrain Rios Montt, making Guatemala the first country worldwide to convict a former leader of genocide (his conviction was later vacated, though, and Montt died during his retrial). 

Recently, however, the nation’s courageous efforts to hold those guilty of genocide and other mass atrocities to account suffered a significant setback with the introduction of bill 5377, which was first tabled in 2017 and which is currently under consideration in Congress. The proposed legislation provides for a blanket amnesty for the perpetrators of fundamental human rights violations committed during the civil war, including for a number of high-ranking military officials who are still very influential in the country’s contemporary political landscape and who are said to be involved with organized crime. The bill would not only enable the immediate release of genocide perpetrators but would equally frustrate future efforts at the prosecution of crimes committed during the armed conflict. The bill claims that prosecution has been selective and directed primarily against army members rather than guerilla fighters, labelling prosecution “a form of judicial harassment of only one of the actors in the conflict, the military”. However, the prosecution’s heavy focus on the military is not surprising, given that the government was responsible for more than 90 percent of atrocities committed, with guerilla fighters bearing responsibility for less than five percent of abuses.

In light of the looming backlash, Guatemala has come under intense pressure from various sides – domestically, civil society organizations have been outspoken in their commitment to fighting impunity and internationally, the Office of the UN High Commissioner for Human Rights, the US State Department, members of the US House of Representatives, and both the Inter-American Court and the Commission of Human Rights have called upon Guatemala to refrain from passing the bill. The bill has already been approved in two out of three required congressional readings – despite a ruling by Guatemala’s Constitutional Court, which pronounced the bill to be in violation of the Guatemalan constitution and demanded that Congress suspend debate of it, and despite an order from the Inter-American Court to permanently withdraw the proposed legislation.

Bill 5377 moreover goes against a global trend that has been variously labeled the “justice cascade“ or a “revolution in accountability” – concepts which describe a worldwide diffusion of efforts to hold accountable those responsible for massive human rights abuses either through domestic, foreign, or international prosecutions. TJ researchers have detected a widespread and rapid shift away from immunity of political leaders to individual criminal accountability for massive human rights violations. While in recent years the trend been somewhat undermined by the International Criminal Court’s (ICC) crisis of legitimacy in Africa, what is important to keep in mind is that the sources of the ICC’s legitimacy deficit are inter alia its alleged neo-colonial nature and its lack of local ownership. Prosecutions in Guatemala, by contrast, have been purely homegrown, no international (or hybrid) tribunal has been involved in Guatemala’s attempts at reckoning with its bloody past, hence the challenge to accountability and the rule of law that we are currently witnessing in Guatemala is of a different quality than the setbacks experienced by courts operating beyond the nation-state.

Innovative TJ research has demonstrated that the perceived legitimacy of TJ institutions is a negative-sum game in that whenever these institutions target specific sectors of society, these groups will challenge the legitimacy of prosecutions, no matter how justified, even-handed, and fair the prosecutions may be. On the other hand, research has shown that while it is possible for courts to help break down conflict-supporting narratives cultivated by the different social groups, this will only be successful if courts are backed by a broad range of institutions representing the different segments of society, rather than having to work against the divisive narratives propagated by these actors. The debate about bill 5377 specifically and TJ in Guatemala more generally bears this assumption out. Society in post-conflict Guatemala is still divided and racism and genocide denialism continue to be pervasive. Even though the peace agreement recognized the indigenous communities and laid the foundation for a pluri-ethnic state, de facto Guatemala continues to be dominated by the ladino and the white population, which is also reflected in these social strata’s reluctance to reckon with the country’s past. Insiders point out that Guatemala is essentially “owned” by eight powerful families – sometimes derisively called the G-8 – and maintain that if change were to happen, it would have to come from within these families. As Marta Elena Casaus Arzu – herself a “dissident” offspring of this oligarchy – in her book Lineage y racismo points out, an attitude of denialism and discrimination against the indigenous population pervades Guatemala’s ruling class. It is not surprising then that these widely shared narratives about alleged Indio inferiority paved the way for genocide against the indigenous population.

That same mindset also characterizes the ruling class’ approach to accountability for atrocities committed during the civil war. The term “reconciliation” is frequently invoked by members of the military to legitimize a 'forgive and forget' attitude to the past and to justify amnesty legislation such as bill 5377. The political elite (and also parts of the population) are still highly reluctant to address the root causes of the conflict and have no interest in prosecutions that would unearth information which is likely to implicate members of the highest echelons of the government and the military. Those who want to rise high in Guatemalan politics need the backing of the army, which continues to pull the strings behind the scenes. This was strikingly evident in the Rios Montt case, where the court ordered a retrial after intense pressure from the military. The Guatemalan judiciary often struggles to maintain its independence from politics, the military, and organized crime. Claudia Pazypaz, for instance, formerly Guatemala’s Attorney General who became known for her aggressive prosecution of organized crime and human rights violations committed during the civil war, had to leave office because of repeated death threats.

In sum then, genocide denialism is widespread in Guatemala, and those who seek to end impunity often pay a high price for doing so. Yet there is no alternative. Research on TJ has shown that short-term negative perceived legitimacy is not necessarily an indicator of TJ’s failure – rather, it is the price to be paid for reconstructing conflict-supporting narratives that prevent reconciliation between former conflict parties in the long-run. For instance, narratives about the Holocaust in Germany did not change all of a sudden after the Nuremberg trials; rather, it took decades before political elites and the population at large began to acknowledge the full extent of the horrors Germany had inflicted upon the world. Yet this also shows that conflict-supporting narratives are not set in stone and can be transformed over time by courts collecting evidence and exposing the wrongdoings of the conflict parties. In Guatemala, there has been at least moderate progress in that there is nowadays more openness to talk about the civil war, but also about current political issues including problems of endemic corruption and organized crime. The population is nowadays less afraid to speak out, which was for instance evident in the 2015 mass protests against then-President Molina. While there have been protests in Guatemala before, the 2015 protests were unique in their persistence and their uniting of different strata of society and where considered a democratic 'awakening' of Guatemalan society. Commentators attributed this awakening not least to the influence of independent-minded Guatemalan prosecutors who refuse to be intimidated and who continue to force the government, the military, and organized crime to confront their own wrongdoings. The adoption of bill 5377 would deal a major blow to the consolidation of this nascent culture of the rule of law and accountability in Guatemala.

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