A Reflection on Transitional Justice in Guatemala 15 Years After the Peace Agreements
VICTIMS OF INTERNATIONAL CRIMES: AN INTERDISCIPLINARY DISCOURSE, Christoph Safferling & Thorsten Bonacker, eds., TMC Asser Press, 2012
Pacific McGeorge School of Law Research Paper
20 Pages Posted: 29 Mar 2012 Last revised: 22 Jun 2017
Date Written: 2012
In this essay, I reflect on what the wartime prosecutions in Guatemala have achieved in the last fifteen years since the signing of the peace agreements and propose alternatives for improving on these important, but limited victories. The wartime trials in Guatemala have been a largely decentralized effort driven by the priorities and dictated by the resources of victims. Through their participation in emblematic wartime cases in Guatemala, victims have infused the justice system with accountability to make it harder for individual prosecutors or judges to dismiss the cases; victims have brought resources that have resulted in better investigations, better trials, and better evidence and even more protection for the brave prosecutors and judges; and victims have creatively pushed the boundaries of law to advance criminal law and procedural doctrines in accordance with international legal developments. However, it is more difficult to assess whether these heroic efforts in the individual cases have yielded much in terms of lasting reforms in the judicial system of Guatemala beyond important albeit limited victories in a few of the cases. Ultimately, transitional justice seeks more than the prosecution and punishment of the perpetrators of war crimes or crimes against humanity. It also seeks to achieve structural changes related to the administration of justice to replace what was once a system or instrument of repression with institutions, norms, and practices that embrace and contribute to a fair democracy. The model of pushing for broader systemic reforms through emblematic high-impact litigation has merit. This approach, however, requires inordinate resources of time and money to coordinate not only the victim’s efforts but also to identify common needs of reforms and then a concerted, sustained, and organized effort to push for reforms and, then, to assess their effectiveness. Moreover, the ad hoc nature of victim-dictated persecutions necessarily has meant the decentralization of difficult choices that must or should be made in the prosecution of wartime cases, either based on pragmatic considerations or on principles of legality. This essay is not at all against victim participation in the wartime cases in Guatemala. Victims should continue to play a central and important role in the wartime prosecutions in Guatemala. They should remain the consciousness and the heart of justice pursuits in Guatemala, especially now when the country appears content or resigned to return to a military-style reign to control violence. However, it is also time for Guatemala to acknowledge that it has asked too much from the victims and to consider alternative models for addressing the persistent and endemic problems of transitional justice in the country.
Keywords: Transitional Justice, Guatemala, Victim Rights, Rights of Victims
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