“All the people have disappeared.” So reads a declassified cable from the U.S. Embassy in Guatemala City, dated Dec. 28, 1982. The subject was an incident that occurred just weeks before, on or about Dec. 6, 1982, in the hamlet of Dos Erres in the northern panhandle of Guatemala, during the country’s nearly four-decade civil war.
More than 200 men, women, and children, including babies, had been murdered by a select detachment of the Kaibiles, an elite Guatemalan military special forces counterinsurgency unit. The victims, who comprised nearly the entirety of the village’s population, had been slaughtered – many by sledgehammer blows to the head, the women and girls raped and strangled. Most of the bodies were dumped in the village well. The sleepy village of Dos Erres had been wiped off the face of the earth.
More than 10 years after the massacre, Argentine forensic experts brought in by victim advocates, exhumed the well, and recovered 162 skeletons. More than a third appeared to be those of children under the age of 12.
Now, amnesty legislation making its way through the Guatemalan Congress and known by its bill number, 5377, effectively would create a blanket amnesty for any crime committed during the civil war, no matter how grievous. The bill also would free, within 24 hours of its passage, any person already detained, convicted, or incarcerated for war crimes, and bring all investigations surrounding the war, which killed more than 200,000 people, to a grinding halt.
The controversial proposal recently failed to clear a procedural hurdle in the Guatemalan Congress. But a new effort is underway that may provide the same reprieve to convicted war criminals.
Wider Grasp for Impunity
The bill is part of a wider political effort by the current regime that also seeks to oust the International Commission Against Impunity in Guatemala (known by its Spanish acronym CICIG), a United Nations-sponsored effort designed to combat corruption and organized crime in that country. CICIG has been crucial to establishing rule of law in Guatemala and vital to U.S. interests. Embattled Guatemalan President Jimmy Morales and his party have been ensnared in an investigation by the Attorney General and CICIG that is examining campaign finance violations, and the beleaguered President has attempted to expel the commission.
The military, apparently sensing an opportunity, has sided with President Morales in exchange for supporting amnesty for human rights abuses of the past.
The proposed Bill 5377 amnesty expansion is captioned, “Initiative to Reform Decree Number 145-96, the Law of National Reconciliation.” Decree 145-96 was enacted in 1996 as part of the U.N.-supervised peace process that ended the war. That law provided amnesty for both “common” and “political crimes” (such as treason) committed during the conflict. But it specifically carved out the “crimes of genocide, torture, and forced disappearance,” as well as “those crimes for which a statute of limitation does not apply or those for which the extinction of the criminal responsibility cannot be admitted in accordance with the Guatemalan internal legislation or the international treaties ratified by Guatemala.”
Guatemala has ratified various international humanitarian law covenants, including the Geneva Conventions. But it was a watershed 2009 decision by the Inter-American Court of Human Rights concerning Guatemala’s failure to bring the Dos Erres perpetrators to justice that determined that the Law of National Reconciliation did not apply to grave human rights breaches, including crimes against humanity and extrajudicial killing.
Bill 5377 explicitly repeals all the exceptions to amnesty in the Law of National Reconciliation, effectively establishing blanket absolution for any crime during the war, no matter how grievous.
The provisions of the National Reconciliation Law had allowed Guatemala to prosecute war criminals, ranging from several of the perpetrators of the Dos Erres massacre to the wartime leader of the military Junta in 1982, General Efrain Rios Montt, who was convicted of genocide in 2013. Even though the Constitutional Court of Guatemala later threw out his conviction, he died two years later, at the age of 91, facing renewed charges. To date, he remains the only head of state ever to be prosecuted for genocide by his own country.
One rationale for the 2017 introduction of bill 5377, according its legislative preamble, was that prosecutions for conduct arising out of the civil war had unfairly targeted members of the military. The bill’s leading sponsor, Congressman Fernando Linares-Beltranea, argued that, of the 72 cases brought before Guatemalan courts, 71 of them involved former military officials, a statistic that he described as “judicial harassment” of the military.
The underlying numbers from the war, however, tell a stark story reflected by the prosecutions. In 1999, the U.N.-sponsored Commission for Historical Clarification concluded that state forces and related paramilitary groups were responsible for 93 percent of the human rights violations documented, including 92 percent of arbitrary executions and 91 percent of forced disappearance.
The U.S. Role in Accountability
The pursuit of justice for the most heinous crimes known to humankind must never waiver. The example set by fearless investigators, prosecutors, and the many ordinary Guatemalans who, after having loved ones kidnapped and disappeared, transformed their own lives to become human rights advocates remains a beacon against impunity throughout Latin America. Their efforts to achieve accountability for the victims had long been obstructed by corruption, an unwilling judiciary, and the continuing influence of the military.
But the story of pursuing justice for the crimes of the past does not neatly begin, nor end in Guatemala.
The United States has often been painted as propping up brutal dictatorships throughout Latin America to fight proxy conflicts in pursuit of winning the Cold War. In Guatemala, that history included engineering a coup in 1954 against the democratically elected government and supporting a series of repressive military regimes.
In 1997, President Clinton apologized for the U.S. role in Guatemala’s violence, acknowledging, “For the United States, it is important that I state clearly that support for military forces and intelligence units which engaged in violence and widespread repression was wrong, and the United States must not repeat that mistake.”
Paradoxically then, despite years of tireless, but stymied, efforts in Guatemala by human rights advocates, it was the United States that brought the first successful prosecution against the perpetrators of the Dos Erres massacre. Of the approximately 17 members of the “special patrol” (made up of instructors from the Kaibil special forces training school) who entered the village and carried out the interrogations and murders, at least five – nearly a third of them – were later discovered to be living in the United States (in California, Florida, Texas, and Maryland). Two had naturalized as U.S. citizens by concealing their membership in the Kaibiles and their wartime atrocities from immigration officials.
In 2010, the U.S. Department of Justice’s Human Rights and Special Prosecutions Section (HRSP) lacking jurisdiction over the underlying conduct, charged Gilberto Jordan with illegal procurement of citizenship, and the following year charged Jorge Sosa Orantes with the same crime. (I served as lead attorney overseeing the Dos Erres massacre investigation for HRSP’s predecessor unit.) While Jordan pled guilty, Sosa fled to Canada. After being extradited to the United States, Sosa was convicted at trial in 2014, in part due to the testimony of his former comrades, including Jordan.
Two other ex-Kaibiles were removed by U.S. Immigration and Customs and Enforcement and sent back to Guatemala where they were convicted and sentenced to more than 5,000 and 6,000 years each for their participation in the Dos Erres massacre. A third lawful permanent resident, under indictment in Guatemala for his role at Dos Erres was convicted for attempted fraudulent procurement of naturalization in a Maryland District Court in 2017.
Risk of Retaliation and Potential Exodus of Asylum Seekers
In contrast to this pattern of active U.S. support for accountability since the end of the war in Guatemala, the State Department in February of this year issued a mild four-sentence rebuke on the new amnesty legislation.
“The United States is deeply concerned about the proposed amendment to the national reconciliation law in Guatemala,” the department said. “The amendment would grant broad amnesty for perpetrators of serious human rights violations and abuses as well as for convicted criminals … The United States remains committed to supporting Guatemalan institutions and the Guatemalan people in their ongoing fight against corruption and impunity.”
While the proposed amnesty bill would indeed compromise Guatemala’s efforts to fight impunity and attain a measure of justice for the horrific atrocities that defined its decades-long civil war, there also are more immediate, tangible concerns. In opposing the bill, U.N. High Commissioner for Human Rights Michele Bachelet publicly warned, “If this amendment is approved, it may lead to retaliation against all those courageous victims, witnesses, judges, public prosecutors, lawyers and organizations who have been promoting justice for past crimes in Guatemala.”
If Bill 5377 has the destabilizing effect feared, it may lead to another surge in Guatemalans fleeing a renewed cycle of persecution and heading for the United States, including those witnesses, victims, cooperators, prosecutors, and advocates who have bravely fought impunity in the face of intimidation and danger for so long.
American policymakers should be mindful of the role that the civil wars in Guatemala and neighboring El Salvador had in triggering a mass exodus of refugees to the United States during the 1980s and 1990s, which, in part helped fuel the creation of the MS-13 gang. Even after peace talks formally ended the wars, violence, corruption, and instability continued to plague those nations as impunity prevented the rule of law from firmly taking root.
And the contagion is spreading: ProPublica just reported that the Parliament of El Salvador, too, is considering a similar amnesty law for its civil war in the 1980s, just as 20 of its former military officials are preparing to face trial for war crimes.
While Bill 5377 is temporarily stalled in the Guatemalan Congress, a new effort may have the same effect. A proposal under the pretext of relieving prison overcrowding has been introduced to free all inmates over the age of 70, which could result in the release of aging military officials.
It is perhaps fitting that the U.S. investigations into the Dos Erres massacre were begun by the DOJ’s Office of Special Investigations (OSI), which since its creation in 1979 was tasked with identifying and removing those who participated in Nazi-sponsored persecution during World War II. When former Kaibil Gilberto Jordan was first confronted by U.S. law enforcement about his role in the massacre, which included hurling a toddler into the village well, he admitted, “I knew this day would come.”
For some aging perpetrators of the Holocaust, that too had been a refrain when OSI finally caught up with them. That was the lesson of prosecuting 91-year-old former Guatemalan President Rios Montt for genocide that systematically targeted the country’s Mayan Ixil people for extermination.
For perpetrators of the gravest crimes against humanity, the constant fear that they will always be pursued to the ends of the earth, no matter how old they are, is a form of justice in and of itself. For these war criminals, there should be no relief for old men.
(The views expressed are entirely those of the author, who served in the U.S. Department of Justice from 2006-2016, and do not represent those of DOJ.)
IMAGE: A police officer stands next to portraits of victims of Guatemala’s 1960-1996 civil war, posted outside the Congress building in Guatemala City on March 13, 2019. The Inter-American Court of Human Rights called out Guatemala to stop the process of approval of amnesty for crimes committed during the armed conflict. (Photo by JOHAN ORDONEZ/AFP/Getty Images)