01/03/2013 06:22 pm ET Updated Mar 05, 2013

Guatemala: Amnesties for Genocide Charges Are Illegal

Between 1960 and 1996, Guatemala was shattered by an internal armed conflict that resulted in the death of 200,000 people and victimizing an entire nation. According to the report by Guatemala's Truth and Reconciliation Commission (TRC), government forces under the de facto presidency of General Rios Montt were found to have committed more than 600 massacres, homicide, forced disappearances, and other crimes, particularly against rural and indigenous communities.

During all those 36 years of extreme violence, 45,000 people were disappeared and 650 massacres took place. Half a million Guatemalans sought shelter in Mexico and one million were internally displaced. These are just some of the numbers of what Guatemala went through in recent history.

According to the report of the TRC, the armed forces were responsible for 93 percent of these crimes. At all lights, there was a generalized and systematic plan led by senior Government Officials to perpetrate attacks against civilian population, under the excuse to pacify the country and free it from guerrilla groups. In the case of Rios Montt, who ran the country for 17 months in 1982/3 and after exhaustive investigations in Guatemala and in Spain, there were reasonable grounds to prosecute him for acts of genocide and crimes against humanity against local indigenous groups.

After years of judicial battles, the Interamerican Court of Human Rights (IACHR) ruling on the Dos Erres Massacre Case triggered a number of local proceedings. Earlier in 2012, a local tribunal sentenced former elite soldiers "kaibiles" to serve for 6060 years for the Dos Erres Case, which took place in 1982. This sentence at the local level was promising: local tribunals finally did was they were meant to be and asked to do by the Interamerican system and was seen as a first step to address impunity in the country. In this context, former head of State Rios Montt appeared for the first time in court to respond for genocide and crimes against humanity. Among the charges, he was accused of the killing of 1700 people who belonged o the indigenous communities. It was for the first time in history that a former president would respond before the local justice for these types of crimes.

Nevertheless, and leaving aside all the hopes of the victims, their families and the human rights movement in Guatemala and in the world, his lawyers and supporters were very active in seeking for ways out of this situation. The latest move was to seek for an amnesty, which as already rejected last October, but now tried again before the total rejection from the human rights community. This time the Constitutional Court of Guatemala has the final word on this claim.

Voices from human right organizations were loud on this regard and submitted an "amicus curiae" to the superior tribunal and, at a local level, organizations and activists have been vocal on how this possibility of granting an amnesty to Rios Montt would impact seriously on the Rule of Law.

Granting this amnesty will respond only to political factors, because legally speaking, Guatemala has international obligations that should comply at an international level. For instance, the American Convention on Human Rights foresees that States should investigate and prosecute all the violations to the letter of this treaty. Likewise, the IACHR precedents also include the content and the limit of the amnesty laws for States Parties.

Some might argue that Argentina, Brazil, and El Salvador -- just to name few -- also granted amnesties in the context of the democratic transition in order to avoid investigation of international crimes. But, as a result, this has caused more impunity and more social division. Proof is that today, in most of these countries, these laws have been struck down and local judicial proceedings have taken place.

Since the Barrios Altos Case, the IACH has determined that amnesty laws are against the American Convention and that cannot serve as an obstacle for the investigation and prosecution of those responsible for the perpetration of grave human rights violations. This rule has been vital for the revocation of the amnesty laws in many Latin-American countries to begin procedures for international crimes, especially torture and enforced disappearances. Even a few weeks before the end of 2012, the IACH determined that the Amnesty Law in El Salvador was contrary to the Convention, opening the door for future investigations at a local level for the El Mozote Massacre in 1981.

These human rights violations must be addressed by the Guatemalan tribunals. At this state, measures should be taken in order to strengthening its judicial system and rule of law throughout the country. Therefore, granting amnesty to Rios Montt will be a step back in the pursuit of justice and reconciliation. It will also be against all the international obligations and mostly, and offense to the victims and their relatives, who seem to be invisible before the Guatemalan State for the past -- at least -- 36 years.

Co-authored with Salvador Herencia (LL.M.) is Member of the Latin-American Study Group on International Criminal Law.