Making the State Do Justice: Transnational Prosecutions and International Support for Criminal Investigations in Post-Armed Conflict Guatemala

In November 2006, a local trial court in Guatemala's capital ordered the arrest of the country's ex-President, Oscar Mejia Victores, along with ex-Defense Minister Anibal Guevara, ex-Police Chief German Chupina, and ex-head of the Secret Police Pedro Arredondo on charges of genocide, torture, enforced disappearances, arbitrary detention, and terrorism.1 The defendants, along with two others whose arrest warrants were not executed, were deeply implicated in the conceptualization and execution of a repressive state strategy that resulted in the deaths of two hundred thousand Guatemalans and the destruction of over four hundred villages. Although the arrest order was carried out through a Guatemalan court, it was issued by a Spanish judge,2 Santiago Pedraz. Judge Pedraz of Spain's Audiencia Nacional3 issued the warrants in July 2006, followed by formal extradition requests. He based Spanish jurisdiction over crimes committed by Guatemalans in Guatemala on a Spanish law that allows universal jurisdiction over certain international crimes. Mejia holed up in his house and the secret police chief fled, while the exDefense minister and the ex-Police Chief were held in a military hospital under guard. This case represents the first time members of the military high command were affected by any legal action against them, and one of a handful of cases where any Guatemalan military officer has been subject to judicial proceedings.4 After over a year in detention, the defendants were freed when Guatemala's Constitutional Court ("GCC") decided on December 12, 2007 that it would not honor Spanish arrest warrants or extradition requests.5 The court held that Spanish courts did not constitute a "competent authority" because Spain did not have jurisdiction over events that took place in Guatemala; the effort to exercise universal jurisdiction was unacceptable and an affront to Guatemala's sovereignty. The court added that the charges were related to political crimes and thus not extraditable, and that Spain's participation in the 1980s Central American peace process meant that it was bound by the commitments made by the government and the insurgents that an official truth commission would have no judicial effects. Given that commitment, the GCC concluded, it would be inconsistent for Spain to now seek to prosecute crimes arising out of the region's civil conflicts. The problem of near-complete impunity for crimes committed during periods of repression and internal armed conflict is not unique to Guatemala. The powerful military and civilian figures who order such crimes usually retain a large amount of power-de jure or de facto-even after the conflict ends or the government changes and are singularly uninterested in criminal investigations into the past. In contrast, the post-armed conflict state tends to be weak, with limited resources and a culture of corruption and self-dealing among state authorities. Moreover, in Guatemala as elsewhere, post-armed conflict military and paramilitary networks have mutated into criminal networks, engaged in drug running, human trafficking, and similar violent enterprises, with a degree of impunity similar to that enjoyed by former military officials in human rightsrelated cases.6 Much of the international institution-building over the last two decades in the field of human rights and international humanitarian law has been aimed at overcoming the impunity of powerful, untouchable actors. An emerging international norm7 holds that when large-scale humanitarian law violations have been committed, action must be taken to deal with the past, including measures to allow victims to find out what happened to their loved ones, to sanction those responsible, and to provide redress. The International Criminal Tribunal for the Former Yugoslavia ("ICTY") and the International Criminal Tribunal for Rwanda ("ICTR") were built on the idea that only an international prosecution and trial would have the ability and legitimacy to try high-ranking perpetrators, including heads of state. …