The prosecution of Jose Efrain Rios Montt, who briefly governed Guatemala in 1982 and 1983 during one of the most lethal periods of the civil war, has faced many challenges in the past few years. He has been accused, along with his former intelligence chief Jose Mauricio Rodriguez Sanchez, of ordering the massacre of over 1,700 indigenous people in northern Guatemala, and for his responsibility in human rights violations such as forced displacement, torture, starvation and systematic rape.
In 2013, Montt was found guilty of genocide and sentenced to 80 years in prison, but 10 days later, theConstitutional Court overruled the verdict on grounds that there had been a violation of due process. Then in early 2015, otherchallenges surfaced, where a judge was rejected due to perceptions of her impartiality, further suspending the trial, and in July, Montt was found to bementally unfit by Guatemala’s forensic authority. Montt will now be retried in January 2016 for his role in the genocide.
The prosecution of those suspected of the most serious human rights abuses is considered a vital element in ensuring the rule of law, yet in many countries ex-leaders are never prosecuted, fostering a culture of impunity. Despite the impending outcome of the trial, however, it has been ruled that the trial will not result in a punishment for Montt, as a result of his deteriorating health. This lack of accountability may trigger public outcry and disappointment. At the same time, the trial could still be beneficial for victims, largely as a result of its truth-seeking function. This commentary will examine this notion, arguing that the situation that Montt faces could help victims if the trial uncovers the truth and provides victims with recognition of the harm that they suffered.
Often, trials are simplified as providing retribution, and less emphasis is placed on their ability to discover the truth. Some scholars, however, have suggested that (international) criminal trials can also be restorative in nature, for example through their truth-seeking function. Uncovering the truth is vital in victim and societal healing, in order to understand the causes of past abuse and to prevent similar atrocities from occurring again.
The latest decision from August 25th, ruling that the retrial may proceed, found that as a result of Montt’s poor mental state the trial will continue behind closed doors. The three-judge panel decided that as a result of provisions of Guatemalan law, special procedures such as these may take place, but the trial cannot lead to sanctions. Even though ‘retributive’ justice in the strict sense will not be applied, there still may be benefits for victims. Indeed, the theory of procedural justice argues that when proceedings are perceived as accurate, they are more likely to be evaluated as fair. Victim testimony, and establishment of the facts, can bring about greater perceptions of accuracy. Subsequently, as research has indicated, when the process is viewed as credible, a negative or non-existent outcome may become less damaging to victims. By communicating that the harm has been acknowledged, and providing respectful and inclusive treatment, victims can receive some satisfaction, even when there is no option for a punitive or reconciliatory legal outcome.
It becomes difficult to deny the past when legal proceedings reveal facts about what happened in the past and who was responsible. As William Tomljanovich, research officer at the ICTY stated, “the biggest achievement is now we know, we know what happened…we know an awful lot about what happened and people will never be able to make the sorts of claims they were making 20 years ago about what happened.” Similarly, Rigoberta Menchu, an advocate of Indigenous rights, stated after the verdict was reached in Montt’s 2013 trial, “Today we are happy, because for many years it was said that genocide was a lie, but today the court said it was true.” When announcing the verdict, the judge stated, “[A]cknowledging the truth helps to heal the wounds of the past and the pursuit of justice is a right of the victims, which also contributes to the strengthening of the rule of law in our country.”
Indeed, attribution of guilt to the perpetrators may be more important for the victims, as assessing guilt helps to establish a historical and factual record, regardless of the ruling of the judge on individual criminal responsibility. The previous 2013 Montt trial helped victims by exposing the events that occurred in relation to discrimination and violence against the Mayan Ixil community. Victims testified about the horrific atrocities committed against them, including kidnapping and gruesome murders of family members, and other officials testified that the military considered Ixil civilians to be legitimate targets. This made it more difficult for supporters of Montt to deny the genocide, or for others to claim that the atrocities did not constitute a genocide, even though this still occurs. The economic and political elite, namely right-wing politicians and former members of the armed forces, denied genocide occurred, rather claiming a narrative of war that the atrocities fell within the rules of armed conflict. The trial revealed the human rights violations that occurred and restored some of the dignity of victims by recognizing the systematic destruction and suffering that took place.
One means of acknowledging the truth is through victim participation. The accounts of over 90 victim-witnesses in the 2013 trial illustrate some form of participation, even though this may be traumatic in some cases, and witnesses were subjected to difficult cross-examination. At the same time, having a voice can help to empower those who were victimized, marginalized and silenced. Having a similar trial that will allow the victims to once again expose the actions of Montt and former members of the military – which does not end in an overturned decision – can further help the victims.
Even though the decision of the Constitutional Court in 2013 impedes victims’ search for justice, the facts that were uncovered still remain. The next trial that may again uncover even more facts is undoubtedly a better alternative to having no justice at all, as would be the case if no trial were to occur. In 2001, the proceedings against General Augusto Pinochet were suspended in Chile due to his mental state. Suharto, the former president of Indonesia, was declared unfit for trial due to his deteriorating health in 2006. The former military dictator Francisco Morales Bermúdez has been ordered to stand trial for his role in the abduction of 13 dissidents. The case of Guatemala could be a lesson to other countries, where there are also challenges to prosecution and sentencing, as it may still provide the justice which victims seek.
The author would like to thank Dr. Lyal Sunga and Dr. Aaron Matta for their feedback.