Artículo publicado para el portal IJCentral el 27 de enero de 2011.

There are currently 120 States Parties to the Rome Statute of the ICC but this number will increase to 121 in a few months. This Thursday, January 26, Guatemalan Parliament approved the ratification of the treaty. With this decision, Guatemala will join 15 other Latin American countries to be part of the ICC, pending similar efforts by Cuba, El Salvador and Nicaragua.

This vote was welcomed by the civil society, which has been working towards the signature and ratification of the Rome Statute for more than 10 years.

Ratification is a welcoming effort towards the future

As written before for IJCentral, Guatemala is a Latin American country shattered by violence and genocide resulting in the death of 200,000 people and victimizing an entire nation between 1960 and 1996. The report of the Guatemalan Truth Commission (Comisión para el Esclarecimiento Histórico), concluded that government forces under the de facto presidency of General Efrain Rios Montt perpetrated more than 600 massacres, homicides, forced disappearances, and other heinous crimes, particularly against rural and indigenous communities. A quarter of a century later, the country still carries the scars of a violent past with little accountability for those responsible for systematic human right violations.

But things are changing. In an effort towards justice, in August 2011, a local tribunal in Guatemala City convicted four former soldiers from an elite unit of the Armed Forces to 6,060 years each for the massacre of Las Dos Erres, where government forces assassinated 200 people, including women and children. This has been seen as an important advance in the process of the country’s recovery and set an important precedent for justice in Guatemala.

It should be noted that despite the lack of comprehensive legislation on international criminal law and human rights in the country, many of its core principles have been already binding on the state through the 1969 American Convention on Human Rights and the rulings of the Inter-American Court of Human Rights. The Rome Statute and several rulings by Ad-hoc tribunals (e.g. the International Criminal Tribunals for the Former Yugoslavia and Rwanda) have been used as interpretative tools for human rights organizations to claim justice before national and foreign tribunals. The most notorious case is the Spanish Audiencia Nacional, which has been trying cases on Guatemala regarding genocide, under universal jurisdiction.

What delayed the accesssion?

In a similar way to the cases of El Salvador and Nicaragua, the delay in the ratification of the Rome Statute had political, rather than legal reasons. In these cases, the argument was the fear that the ICC could investigate crimes against humanity perpetrated during the internal armed conflicts, namely enforced disappearances and torture.

In the case of Guatemala, the Constitutional Court rendered a favorable opinion in 2002 whereby no constitutional amendment is needed in order to ratify the ICC.  Nonetheless, Congress was historically opposed to ratification. Last week, upon entering into office and in his inaugural speech, President Pérez Molina, a former military General, referred to the International Criminal Court and said his administration “was willing”to become party to the Rome Statute.

In this context Congress swiftly included this issue in the agenda, adopting by 129 favorable votes, this Thursday, Decree No. 3-2012, approving the ratification of the Rome Statute. Now, the President must sign and publish the Decree for its final enactment. This is a simple procedural rule that should take place in the following days, considering that the decision to ratify the treaty came directly from the Executive Branch.

At the same time, human rights activists celebrated the fact that former President Rios Montt appeared for the first time in a Guatemalan court, where he will be prosecuted for counts of genocide and crimes against humanity. General Efrain Rios Montt has since been placed under house arrest and the judge announced that there is sufficient evidence for him to stand trial in Guatemala. This is a mighty step towards justice, and a huge victory for those in Guatemala who have fought relentlessly for accountability for the crimes committed under Rios Montt’s command in the 1980s.

ICC for the Future

When a country joins the ICC it does not exclude any other means of justice. Guatemalan and other international organizations should continue to advocate for justice for victims of atrocity crimes and genocide committed in Guatemala.

The ICC is a Court of last resort and states that become parties to the Rome Statute accept that if they are unable or unwilling to prosecute the grave crimes contained in the Statute the ICC shall apply its jurisdiction to bring those criminals to justice.

The human rights violations perpetrated for 36 years must be addressed by the Guatemalan state or by tribunals that have jurisdiction.

Guatemala’s ratification of the treaty will contribute to strengthening its judicial system and rule of law throughout the country.

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* Mariana Rodriguez-Pareja is the Director of the Human Rights Program at Asuntos del Sur (ADS). Twitter handle: @maritaerrepe

Salvador Herencia-Carrasco, LL.M. University of Ottawa, Legal Adviser of the Andean Commission of Jurists. E-mail: sherencia@cajpe.org.pe