Introduction to impunity Impunity by definition is "impossibility, de jure or de facto, of bringing the perpetrators of violations to account 1.

This for too long has been the legacy of many countries trying to reestablish democratic and transparent governments after many years of internal and external conflict. The act of impunity implies that there is a deficiency in the way the justice system in a particular country handles certain issues. When atrocious violations of human rights are committed action must be taken immediately. After the end of WWII international trials were held to prosecute Nazi party members for the vicious crimes they committed against the Jewish community. Regrettably, while it is not possible to bring all perpetrators to justice, the ability to hold trial and systematically punish those responsible, I believe, sends a strong message to other perpetrators that the world is watching and their actions will not be tolerated and if caught they will be dealt with accordingly. When a nation does not take the proper steps to further prevent conflict and violence, I believe that it is the responsibility of the international community to take action. International assistance The establishment of international entities to aid in the political, judicial, economic and or social restructuring of a nation is one of the best ways to raise awareness and lead the country in the right direction. For so long many countries continue down the path of sameness; same policies, same ideas, and same results. In order to make an actual change, I believe that nations must look to the international community and together they can make a concerted effort towards real change. An example of international interventions is the establishment of The International Criminal Tribunal for the former Yugoslavia (ICTY); it has provided a venue for war criminals to be tried. The court has successfully tried at least 50 cases2 with many of the accused being given sentences. The cooperation of the UN in helping establish councils and international courts has provided the necessary arena for fragile governments to properly handle human rights violations. But of course a country cannot reach peace and reconcile its past without the hard work of its internal political and judicial system. Even after more than 10 years of having been established, the tribunal in
1

Promotion And Protection Of Human Rights Impunity United Nations, 08 Feb 2005, p. 6, http://www.un.org/Docs/journal/asp/ws.asp?m=E/CN.4/2005/102/Add.1 2 The cases. The International Criminal Tribunal for the former Yugoslavia, http://www.icty.org/action/cases/4

Yugoslavia still faces resistance from the local authorities. In their latest annual report they state, Despite some improvements over the past year, legal obstacles to cooperation still exist. This situation threatens the successful investigation and prosecution of war crimes cases.3 The disregard for continual judicial improvement is shocking but it is the reality in many countries with a legacy of impunity. The cooperation and involvement of the international community in the rebuilding of war-torn countries, I believe should be a welcomed and much used recourse. Issues with international aid Of course there are those who advocate against international aid, including international courts and international commissions, they believe that these may not be the most effect solutions. One of the problems with international courts and/or international intervention regarding an issue such as impunity is that there may be a focus on the highlevel individuals who ordered the attacks but not on those who might have been involved in other ways. In their article Fletcher and Weinstein outline three categories of perpetrators who might be overlooked: (1) unindicted perpetrators including community members who directly or indirectly profited from the event; (2) states outside the area of conflict that may have contributed to the outbreak of violence by their acts or omissions; and, (3) the bystanders who did not actively participate in violence, but who also did not actively intervene to stop the horrors.4 By focusing on the intellectual authors you end to forget about those who actually carried out the attacks, those who stood by and allowed it to happen, or even those who made profit from the violations. Fletcher and Weinstein bring up the point that by individualizing the guilt to only those in power, there is the chance that this may contribute to the myth of collective innocence. By not fully addressing the problem throughout all levels of society, you run the risk of continuing the legacy of violence. But while these are some risks that you run by eliciting international help, I believe that that benefits of international aid outweigh the above risks. If internal solutions were not fixing the issue, nations must look outside their borders. Impunity and international documents
3

Report of the International Tribunal for the Former Yugoslavia United Nations, General Assembly Security Council, 30 July 2010, p. 19, http://www.icty.org/sections/AbouttheICTY/ReportsandPublications 4 Laurel E. Fletcher & Harvey M. Weinstein, Violence and Social Repair: Rethinking the Contribution of Justice to Reconciliation, Human Rights Quarterly 2002, p. 579

The Charter of the United Nations clearly states in Article 1 Chapter 3 To achieve international co-operation in solving international problems of an economic, social, cultural, or humanitarian character, and in promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language, or religion;5. This document is the foundation for international human rights. It is also an important document because it is a binding agreement for all ratified member states. Violations against the charter clearly show blatant disregard by member countries. The charter of the UN led to the creation of the International Bill of Human Rights, ratified in 1948. The bill is made up of the Universal Declaration of Human Rights, the International Covenant on Economic, Social and Cultural Rights (ICESCR) and the International Covenant on Civil and Political Rights (ICCPR). The Declaration, while it is not a treaty itself it is deemed as part of customary international law meaning that it something that is done as a general practice6 and not only because it is legally mandated. It is my belief that human rights should be respected because it is the right thing to do and not only because it is legally required. So although the Declaration is not legally binding it delineates undeniable human rights that have been agreed upon as unalienable. The ICCPR is a treaty designed to protect the civil and political rights of individuals. While it does not directly address impunity it does state in article 22 that Everyone, as a member of society, has the right to social security and is entitled to realization, through national effort and international co-operation and in accordance with the organization and resources of each State, of the economic, social and cultural rights indispensable for his dignity and the free development of his personality.7 Impunity implies a disregard for the wellbeing of others and a narrow mindedness focused only on the self-realization of oneself because there is blatant disregard for others when the human rights violations are committed; this in turn impedes the free development of an individual. The fact that the ICCPR is a treaty represents a legal obligation for all ratified member states to abide by the outlined document. Article 2 Paragraph 1a. of the Vienna Convention on the Laws of Treaties
Article 1 Chapter 3 Charter of the United Nations. United Nations, http://www.un.org/en/documents/charter/chapter1.shtml 6 Nathaniel Burney, Customary International Law International Law: a brief primer, http://www.burneylawfirm.com/international_law_primer.htm#customary 7 Article 22 International Covenant on Civil and Political Rights, United Nations, http://www2.ohchr.org/english/law/ccpr.htm
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defines a treaty as an international agreement concluded between States in written form and governed by international law, whether embodied in a single instrument or in two or more related instruments and whatever its particular designation;8 While we do not live in a utopian world, where nations are free of crime and violence, making sure that countries are following the documents to the best of their abilities is the best we can hope for. The VCLT also states in Article 26 Every treaty in force is binding upon the parties to it and must be performed by them in good faith.9 Countries who enter into treaties and willfully ratify the agreement must be held accountable and must follow through with the provisions. International groups can aid as watchdogs to make sure that nations are abiding to stipulations to the best of their abilities. Rule of law The implementation and restoration of the rule of law is also an important component to the reemergence of a nation as a strong self-governing state. The UN defines the rule of law as a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards."10 Equality and accountability are two components that are sorely missing in nations that perpetrate a culture of impunity. The establishment of legislation that promotes accountability for everyone is an essential concept in the restoration of peace after a time of conflict, in order to promote economic and social expansion. Corruption and violence are widespread in transitioning countries, so often their internal resources are stretched to maximum capacity therefore sometimes a state must look for help outside their borders. The United Nations established the Rule of Law Coordination and Resource Group in 2006, its role is to ensure coherence and minimize fragmentation across all thematic rule of law areas, including justice, security, prison and penal reform, legal reform, constitution-making, and transitional justice. 11 Enforcing the rule of law is crucial for the future development of a stable nations. Naomi
Article 2 Section 1a Vienna Convention On The Law Of Treaties Vienna, 23 May 1969 . http://treaties.un.org/doc/publication/mtdsg/volume ii/chapter xxiii/xxiii-1.en.pdf 9 Ibid, Article 26 10 What is the Rule of Law?, United Nations Rule of Law, http://www.unrol.org/article.aspx?article_id=3 11 Rule of Law Coordination and Resource Group United Nations Rule of Law, http://www.unrol.org/article.aspx?article_id=6
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Roht-Azarria believes that as nations attempt to rise out of periods of lawlessness12 one of the first opportunities to reestablish order and a new trust in the law is in how former dictators and those who contributed to the lawlessness are treated and held accountable. Guatemala: legacy of impunity Guatemala is a country with a diverse and divided population. It is located in what was once the heart of the Mayan empire, its population speaks Spanish as well as 24 other known indigenous languages 13 . The ostracism of the indigenous population has been a legacy inherited since colonial times. They have been excluded, displaced, oppressed and mistreated. The political and social systems are structured in order to align the power and wealth in the hands of an elite few. A demonstrated disinterest in the economic, social and cultural progression of the country as a whole led to an internal armed conflict that resulted in a 36-year long civil war that ended in 1996. The war left around 200,000 either dead or disappeared 14 this is not counting how many people were displaced. The struggle by liberals to overthrow the militaristic government spawned a bloody and violent era. Much of the conflict stemmed from disputes over misappropriation and misuse of land. Not willing to give up their power and wealth so easily the government began systematically oppressing anyone or any group that they felt was opposition. In 1981 the government began enforcing its agenda through the use of paramilitary groups or PAC (Patrullas de Autodefensa Civil), which were civil defense units established by the army in 1981. Males over the age of 15 were forcibly recruited and made to disseminate and execute terror against anyone deemed an agitator. This meant fathers, brothers, friends, and cousins of the victims were carrying about the atrocities. During the 36-year conflict the country saw power change hands 13 different times.15 The period between 1982 and 1983 was found to be the most violent and resulted in the most disappearances and attacks. The leader at that time, Efran Ros Montt engaged the scorched earth policy, this method calls for the destruction by fire of anything that may be useful to whoever is deemed the enemy. In this case the policy displaced and killed hundreds of thousands of indigenous people. Use of the
Naomi Roht-Arriaza, Impunity and Human Rights in International Law and Practice (Cary, NC, USA: Oxford University Press, 1995), p 4., http://site.ebrary.com/lib/sdub/Doc?id=10087222&ppg=19 13 Languages: Spanish, 24 indigenous languages (principally Kiche, Kaqchikel, Q'eqchi, and Mam). U.S. Department of State, 22 Mar 2010, http://www.state.gov/r/pa/ei/bgn/2045.htm 14 Conclusions Guatemala: Memory of Silence, Report of the Commission for Historical Clarification, http://shr.aaas.org/guatemala/ceh/report/english/conc1.html 15 See Appendix 1
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policy is clearly prohibited under Article 54 of Protocol I of the 1977 Geneva Conventions, it states, It is prohibited to attack, destroy, remove or render useless objects indispensable to the survival of the civilian population, such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works, for the specific purpose of denying them for their sustenance value to the civilian population or to the adverse Party, whatever the motive, whether in order to starve out civilians, to cause them to move away, or for any other motive.16 It should be noted that Guatemala did not ratify Protocol I of the Geneva Conventions until 1987 so the crimes committed cannot be considered violations under the convention. Also, in Article 11 Paragraph 2 of the UDHR states that No one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.17 These documents do not allow retroactive application, but although the employment of the scorched earth policy by the Guatemalan government cannot be considered under various human rights documents does not take away from the seriousness of the violations and the lack of respect for human life that the government had. According to Heasley et al. 18 , Guatemala did not ratify the ICCPR until 1992 so the attacks before that date could not be considered violations under Article 6 of the ICCPR. But the massacres do constitute violations under the Guatemalan constitution, which reads under Chapter 1 Article 3 that the state guarantees and protects human life from its inception, as well as the integrity and security of the person19. The civil war did not end until 1996 so all violations committed from 1992 can be considered violations to the ICCPR. . But it is important to remember that Guatemala is party to other treaties such as the American Convention on Human Rights which it ratified in 1978 as well as the Genocide convention which Guatemala ratified in

Article 54 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977. United Nations, http://www.icrc.org/ihl.nsf/7c4d08d9b287a42141256739003e636b/f6c8b9fee14a77fdc125641e0052b079 17 Article 2 Universal Declaration of Human Rights December 10, 1948. United Nations, http://www.un.org/en/documents/udhr/index.shtml#a2 18 Nathanael Heasley et al., Impunity In Guatemala: The States Failure To Provide Justice In The Massacre Cases, American University Law Review 2001, p. 1125 19 Chapter 1 Article 3 Constitucin Poltica de la Republica de Guatemala 1985, amended in 1993, http://www.constitutionnet.org/en/vl/fsearch/results/taxonomy%3A270.288

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1950. Article IV of the Genocide convention olds that those who commit crimes of genocide must be punished, regardless of if they are rulers or public officials.20 This blatant disregard for the international laws and regulations that govern human rights is a legacy that unfortunately Guatemala still holds today. Guatemala after the war The civil war officially ended on December 29th 1996 when guerilla leaders met with government officials to sign a peace treaty. Peace talks had been ongoing for several years prior to that but the accords and agreements that had previously been reached became official with the signing in December of 1996. The stipulations for these agreements were many ceasefire, demobilization of the guerillas land reform justice reform and a limited amnesty for military, police and guerrillas 21 Unfortunately the progress made to implement these clauses has been slow if non-existent. Guatemala is still overrun with corruption and violence, as well as an upsurge in gang activity and drug trafficking. According to the U.S. Department of State, Guatemala has one of the highest violent crime rates in Latin America. In 2009, approximately 25 murders a week were reported in Guatemala City alone. The murder rate in Guatemala has steadily increased in the past few years (see Appendix 2). Reform has been a slow process in the 14 years since the end of the civil war. The governments have been faced with corruption charges as was the government of president Alfonso Portillo (2000-2004), he himself is currently in prison for charges of money laundering, coincidentally Portillo ran for president and won as part of the FRG political party, backed by Efran Ros Montt. Most recently current president Alvaro Colom faced a scandal where he himself was accused of orchestrating the murder of a prominent lawyer. In such a divisive and politically fragile country it is evident that the government will not be able to enforce positive change on their own, people are wary of governmental promises and of the judicial system. Outside of the scope of the government external commissions are a good tool to shed light on the truth of the situation and possibly propose an agenda that might promote real change. International assistance as an aid against impunity
Article IV Convention on the Prevention and Punishment of the Crime of Genocide 9 December 1948, United Nations, http://www.preventgenocide.org/law/convention/text.htm#IV 21 Guatemala: Squeezed between crime and impunity Latin America Report N33 International Crisis Group 22 June 2010, p. 4-5, http://www.crisisgroup.org/en/regions/latin-america-caribbean/guatemala/033guatemala-squeezed-between-crime-and-impunity.aspx
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The creation of truth commissions such as REHMI (Recovery of Historical Memory) and the CEH (Comisin para el Esclarecimiento Histrico/ Historical Clarification Commission) although not legal entities have served to not only recall the history of the conflict, but to discover and tell the stories of all those who were affected by the atrocities. Many stories of murder, rape, disappearances, torture, and violence were uncovered and told. What these commissions also discovered was that the majority of the human rights violations that were committed were ordered and carried out by factions of the Guatemalan government. This culture of impunity and lawlessness had led the country down a dangerous path. The lack of accountability for human rights violations during the internal conflict has led to a national culture of impunity, the murder rate is high and the political arena is still rife with corrupt and self-gratifying players. The people have been ingrained with fear and distrust in their government. The judicial system has long failed and not been enforced in many parts of the country. After the conflict the fear and mistrust of the justice system was further experienced. The inability of the internal government to effectively implement agreements from the peace accords led Guatemala to seek assistance from the international community. The CEH found that the judiciary became functionally inoperative with respect to its role of protecting the individual from the State, and lost all credibility as guarantor of an effective legal system. This allowed impunity to become one of the most important mechanisms for generating and maintaining a climate of terror.22 One of the most important reforms was to be police reform. Restructuring the security forces was crucial because many of the active officers at the time were left over from the time of conflict, many of them had been involved in the human rights violations. But instead of overhauling the system and implementing a positive well-thought out agenda many of the pre-reform officers were allowed to keep patrolling. Appendix 2 shows what people thought was the most important issue in Guatemala in 2008. Guatemala has become a paradise for criminals, who have little to fear from prosecutors owing to high levels of impunity.23

Guatemala: Memory of Silence, Report of the Commission for Historical Clarification, Conclusions Section 56, http://shr.aaas.org/guatemala/ceh/report/english/conc1.html 23 Guatemala: Squeezed between crime and impunity Latin America Report N33 International Crisis Group 22 June 2010, executive summary, http://www.crisisgroup.org/en/regions/latin-americacaribbean/guatemala/033-guatemala-squeezed-between-crime-and-impunity.aspx

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Accountability is crucial for the rebuilding of a nation. It offers the possibility of holding accountable those who commit acts of aggression and violate humanitarian laws of war, and it is central to the establishment of a rights-respecting post-conflict regime24. In her book Impunity and Human Rights in International Law and Practice Naomi RohtAzarria writes that in order to deal with human rights violations discussion must take place on two different levels, the national level as well as the international level. The national system must be given the opportunity to launch its own investigations and determine the magnitude and inhumanity of the violations committed. Considerations at the national level also include the strength of the new government, economic stability and whether these are decisions to be made by the government itself or whether they should be subject to public opinion. She also brings up that point that if the victims of repression constitute a discreet minority, isn't there a danger that majoritarian decision making will trample on whatever rights to redress victims may have in a morally unacceptable fashion? 25 This point is highly relevant in the case of Guatemala, because the victims were mostly indigenous people who have been systematically underrepresented, oppressed and mistreated. Discussion on the second level is governed by the requirements of international community. She believes that international law can provide guidance on relevant issues to transitioning societies. Countries who do not comply with mandates of international law face great expenses in terms of withdrawal of aid, loss of trade, or isolations from further assistance. The establishment of the CICIG (Comisin Internacional Contra la Impunidad en Guatemala/International Commission against Impunity in Guatemala) in 2006 was a major step towards the reconciliation between justice and the fight against impunity. The Agreement on the Establishment of CICIG was signed on December 12th 2006. The Guatemalan Congress approved the Agreement on August 1st 2007 and CICIG began its work on September 4th 2007 with Carlos Castresana Fernndez to head the commission. The objective of the CICIG is assisting the Guatemalan State in investigating and dismantling violent criminal organizations believed to be responsible for widespread crime
24

Randal Peerenboom, Human rights and Rule of Law: What's the Relationship?, Georgetown Journal of International Law 2005, p. 25 Naomi Roht-Arriaza, Impunity and Human Rights in International Law and Practice (Cary, NC, USA: Oxford University Press, 1995), p 5., http://site.ebrary.com/lib/sdub/Doc?id=10087222&ppg=19

and the paralysis in the country's justice system.26 The CICIG is working alongside the Guatemalan government to implement long-term solutions. Although it is an external entity the CICIG operates under Guatemalan law. Cases that are investigated by the CICIG are handed over to be prosecuted in national court. In their two-year report the commission details 14 cases of which they have had a part in investigating and/or helping to prosecute. One of those cases being the murder of lawyer Rodrigo Rosenberg for which current president Alvaro Colom was implicated, but through the work of the CICIG, president Colom was exonerated. Another important case has been the extradition and trial of former president Alfonso Portillo for the funneling of federal funds into personal accounts. The work of the CICIG is commendable and is helping to lay down the foundation for what will hopefully one day be a strong and effective judicial system. But the CICIG itself has faced obstacles along the way. On June 30th 2010 Francisco Dall'Anese replaced Carlos Castresana as head of the commission. Castresana resigned citing that he felt the Guatemalan government was not living up to its promises. He was also against the appointment of Conrado Reyes as attorney general. Castresana accused Reyes of having ties to illegal activities. The resignation of Castresana was seen as a setback in the fight against impunity, because without the support of the national government progress cannot be made. The commission was set to end in 2009 but UN Secretary-General Ban Ki-Moon extended its mandate until September 4th 2011. Long-term impact on the edification of the judicial system will prove to be a challenge. While the CICIG is promoting accountability and governmental transparency, many worry that the results will only be achieved on a short-term basis. There is also worry that reliance on the CICIG will only increase and that once it is not in place anymore the country will retreat back into it a culture of impunity and lawlessness. In an interview former CICIG commissioner Carlos Castrasena said There is an emergency situation in Guatemala from a justice and security point of view, as the country has weak and ineffective institutions as a result of the armed conflict, and the problem has been greatly aggravated in recent years because of transnational organized crime. Therefore I believe the answer has to be broader, with a broader effort from the entire international community.

About CICICG International Commission against Impunity in Guatemala, http://cicig.org/index.php?page=about

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Since the problem transcends borders, the answer must also be broader.27 2011 will prove to be a pivotal year for the work of the CICIG; with presidential elections taking place its work against impunity will prove to be indispensable. Transitional justice is a continual process for a country like Guatemala. Changes will not occur overnight, it will have to be a continual learning process. Guatemala has proven that it cannot rectify its condition alone. Corruption, violence, impunity, discrimination; these are all legacies that it must fight to leave behind in order to ensure positive social, economic and cultural change. The international community is a vital piece of the puzzle. Through the implementation of treaties, commissions, aid, and reforms, one can hope that things will begin to change for the better. It is because of international help that Guatemala has made the progress it has. With the help of the CICIG they have been able to bring charges against a former president, something that would have been unimaginable before. Reliance on national laws and the promises of its leaders has proven futile. If a country does not face its past issues it is condemned to repeat them. Impunity has lead to violence, lawlessness, poverty and a distrust in the government.

UNODC enters partnership to address organized crime in Guatemala United Nations Office on Drugs and Crime 29 April 2010, http://www.unodc.org/unodc/en/frontpage/2010/April/interview-with-commissionercarlos-castresana-on-guatemala.html

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Appendix 228

Appendix 329

28

United Nations Office on Drugs and Crime, Crime and Development in Central America: Caught in the

Crossfire (New York: United Nations, 2007). Barometro de las Americas, Political Culture of Democracy in Guatemala, 2008: The Impact of Governance
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