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In a decision widely misreported in the press, Guatemala’s Constitutional Court last week asked a lower court judge to explain why Guatemala’s 1986 blanket amnesty law should not shield former dictator Efrain Rios Montt from judicial action.  The lower courts have already held, and the Constitutional Court has agreed, that the later 1996 Law of National Reconciliation, does not impede prosecution.  That law has an explicit exception for genocide and other international crimes.  However, the Court’s concern now was with the earlier version, which Rios Montt claimed had to be applied since it applied at the time, and ignoring it now would violate principles of legal certainty and legality by retroactively applying a later law.

The 1986 law was passed by the Mejia Victores government shortly before the handover of power to a civilian regime.  It provided amnesty to all those accused of political crimes or related common crimes from March 23, 1982 until January 14, 1986.  (Originally a co-defendant with Rios Montt in the genocide case, Mejia was excused from trial for health reasons).  As such it is a classic “self-amnesty,” widely condemned by the Inter-American system and the UN as contrary to a state’s international commitments.  It was overturned by the Guatemalan Congress when the 1996 law was passed, and so had no ongoing legal validity.  It also violated Guatemala’s adherence to the Genocide Convention, which dates back to 1950 and which requires punishment of the crime of genocide.  The obligation to prevent and punish genocide was incorporated into the penal code in 1973, well before the events at issue, and before the amnesty.  Thus, any argument about ex post facto law is particularly inapposite here.

The amparo was filed by Rios Montt back in 2012, when a pre-trial court denied his assertion that the earlier amnesty applied.  The Constitutional Court held now that the lower court that rejected his appeal of that ruling had inadequately explained its decision, and thus had to go back and do so now.  It did not, contrary to press reports, take a position itself on the validity of the 1986 law.

Two judges, Mauro Roderico Chacon Corado and Gloria Patricia Porras Escobar dissented.  These were the same two judges who dissented from the Court’s May 21 decision to order the annulment of the verdict against Rios Montt.   Chacon argued that there’s no reason for the CC to be re-opening the issue, while Porras explained that the 1986 amnesty was never valid because it would contradict Guatemala’s obligations under the Genocide Convention.  International commitments have a higher status in Guatemalan law than decree laws like the 8-86 amnesty law.  Thus, since the 1986 amnesty was void from the start, it could not have created legitimate expectations that were overturned by the later 1996 amnesty and the explicit repeal of all earlier amnesties.  Porras cited the reiterated doctrine of the Inter-American Court that this type of blanket self-amnesty is clearly prohibited under the American Convention on Human Rights and other treaties to which Guatemala is a party.

The country’s Human Rights Ombudsman has pointed out that genocide and war crimes cannot be considered either political crimes or closely connected common crimes.  Genocide, in particular, requires a specific intent that is inconsistent with the nature of a political crime.

It is, of course, quite possible that the lower courts will adequately apply the law and simply explain why the amnesty does not apply.  However, the pre-trial judge in the case, Patricia Flores, during the trial was hostile to the prosecution, and is something of a loose cannon.  Whatever she decides will no doubt be appealed, yet again, up to the Constitutional Court.  And so the endless legal maneuvering continues.