On January 17, 2013, Guatemalan President Otto Pérez Molina announced the derogation of a resolution that would have attempted to limit the Inter-American Court of Human Right’s jurisdiction over alleged human rights violations that took place before 1987. [IACHR; Procuraduría de Derechos Humanos]
In December 2012, the Guatemalan Congress passed Resolution 370-2012, the purpose of which was to restrict the Inter-American Court of Human Rights’ jurisdiction to only those Guatemalan cases arising after 1987, the year in which Guatemala recognized the Court’s jurisdiction. [Prensa Libre] The measure was an attempt to ensure that continuing acts or crimes would only fall under the Court’s jurisdiction if the original conduct occurred after 1987. [IACHR] The legislation would have barred many victims of Guatemala’s internal armed conflict, which occurred between 1960 and 1996, from seeking remedies through the Court for continuing violations, such as enforced disappearances. [Amnesty International]
Human rights defenders in Guatemala, including Jorge Eduardo de León Duque, the Human Rights Ombudsman (Procurador de Derechos Humanos), called on the President to derogate the act, characterizing it as a step backward in Guatemala’s efforts to provide justice to victims. [Prensa Libre] Amnesty International stated that the move would “extend impunity for human rights violations committed in the internal armed conflict.”
In his announcement to derogate the resolution, President Pérez Molina explained that Guatemala was capable of recognizing and rectifying its mistakes. He also thanked human rights advocates Jorge Eduardo de León Duque, Helen Mack, Frank La Rue, and Francisco Soto for their efforts and highlighted the importance of maintaining a dialogue between the government and human rights workers. [Procuraduría de Derechos Humanos]
For their part, human rights advocates recognized the seriousness with which President Pérez Molina treated the problem and expressed satisfaction with the result. [Procuraduría de Derechos Humanos; Amnesty International; Center for Justice and International Law; IACHR] The Inter-American Commission on Human Rights issued a press release in which it welcomed the derogation and emphasized the nature of the Inter-American Court’s jurisdiction, stating:
In accordance with the principles of pacta sunt servanda and non-retroactivity, the Inter-American Court has jurisdiction to review acts or events that took place after the recognition of its jurisdiction and which have generated violations of human rights. Similarly, the Court has jurisdiction to review those events that constitute continuing or permanent violations, that is, those that took place before the entry into force of the treaty and which persist after that date, for example cases of forced disappearance. Moreover, the Inter-American Court has repeatedly established that, pursuant to article 63.1 of the American Convention, it has the mandate to ensure that the consequences of human rights violations are repaired in accordance with international standards.
The IACHR notes that this decree was derogated following a process of dialogue between the Executive and human rights defenders. The IACHR notes with concern that some reactions to the derogation have characterized the work of civil society organizations and State entities in favor of human rights as “terrorist.”
In this sense, the IACHR reiterates that the work of human rights defenders requires measures of respect and protection; threats against the work of human rights defenders affect not only their rights but the fundamental role they play within the society.
The State of Guatemala, within it sovereignty, freely committed itself to respect and guarantee the rights contained in the American Convention on Human Rights, and the Commission recognizes the derogation of Governmental Resolution 370-2012 as a positive step, consistent with those expressions of commitment to respect human rights.
Guatemala has previously contested the Inter-American Court of Human Rights’ jurisdiction. [Prensa Libre] In the Case of the Río Negro Massacres v. Guatemala, the government argued that the Court lacked temporal jurisdiction because the alleged violations occurred in 1982, before it accepted the Court’s jurisdiction in 1987. However, the Court determined it was competent to adjudicate ongoing or permanent violations such as forced disappearances, lack of proper investigation, adverse effects on victims’ families, destruction of communities, and forced displacement because they persisted and remained unresolved after 1987. Therefore, the Court was still able to reach the merits of many of the alleged violations, despite a lack of competence to review violations of an instantaneous nature that occurred prior to 1987. See I/A Court H.R., Case of the Río Negro Massacres v. Guatemala. Preliminary Objection, Merits, Reparations, and Costs. Judgment of September 4, 2012. Series C No. 250.
Guatemalan Human Rights Cases before Domestic and Regional Courts
The derogated Resolution 370-2012 could have become relevant in ongoing cases before the Inter-American system. For example, a petition that is apparently pending before the IACHR involves the Guatemalan government’s role in the massacre of several villages between 1981 and 1986 and the lack of subsequent investigation. See IACHR, Report No. 144/10, Petition 1579-07, Residents of the Village of Chichupac and the Hamlet of Xeabaj, Municipality of Rabinal (Guatemala), 1 November 2010.
In recent years, cases involving genocide, extra-judicial killings, and inadequate investigation of abuses from the period of the internal armed conflict in Guatemala have reached both domestic and international courts. In November 2012, the Inter-American Court of Human Rights found the Guatemalan government responsible for the forced disappearance of 26 individuals and the torture and rape of a minor in 1983, which were detailed in a military journal found in a police archive. I/A Court H.R., Caso Gudiel Álvarez y Otros (“Diario Militar”) v. Guatemala. Merits, Reparations, and Costs. Judgment of November 20, 2012. Series C No. 253 (currently available only in Spanish). Similarly, the Court found that the Guatemalan government was responsible for the 1982 massacre at Dos Erres and for failure to provide judicial protection for the victims. I/A Court H.R., Case of the “Las Dos Erres” Massacre v. Guatemala. Preliminary Objection, Merits, Reparations, and Costs. Judgment of November 24, 2009. Series C No. 211. In 2004, the Court held Guatemala responsible for the 1982 massacre at Plan de Sánchez and its failure to investigate and prosecute those responsible. I/A Court H.R., Case of the Plan de Sánchez Massacre v. Guatemala. Judgment (Merits). Judgment of April 29, 2004. Series C No. 105.
Pursuant to its exercise of universal jurisdiction, the Spanish National Court is currently handling a case against Jorge Sosa Orantes, a member of an elite military squad called the Kaibiles, for his role in the Dos Erres Massacre. Most recently, Canadian authorities arrested Orantes pursuant to a warrant from California for providing false information on his citizenship application. [Center for Justice and Accountability]
A Guatemalan domestic court instituted proceedings against former President Efraín Ríos Montt and two other former military generals for more than a dozen killings by military forces after the former lost official immunity when he retired from serving in political office. [IJRC] While the defense attorney recently challenged the presiding judge’s fitness to hear the case, the court is moving forward with pre-trial hearings to evaluate whether there is sufficient evidence to go to trial. [Prensa-Latina; La Hora; Huffington Post] Last year, a Guatemalan court also sentenced five former paramilitaries to a total of over 7,000 years in prison for their roles in the Plan de Sánchez massacre. [BBC] Guatemalan non-governmental organizations, including the Centro para la Acción Legal en Derechos Humanos (CALDH), have been advocating for the domestic prosecution of those responsible for conceiving of, ordering, and carrying out human rights abuses during the internal armed conflict. CALDH provides updates on these efforts through their website.