Look on the Bright Side

When the Constitutional Court of Guatemala overturned a genocide conviction of ex-President Efraín Rios Montt earlier this month, champions of human rights were devastated. Poor farmers and indigenous communities who had borne the brunt of the generalissimo’s 17-month rampage at the height of the Central American Cold War called the majority (3-2 vote) ruling by the high court a "shock and a travesty." Civic leaders wagged their heads knowingly at "business as usual," disparaging of Latin America’s dismal record of crony justice and hollow democracy.

They had their reasons. The genocide trial, the first of its kind, was more than a decade in the making. The case against Montt had been painstakingly pieced together by forensic experts, crack legal scholars, and eyewitnesses to the serial massacres that Rios Montt’s troops unleashed in the Mayan highlands during his rule (1982-1983). Nearly 100 prosecution witnesses mustered the courage to come forward during the six-week trial earlier this year, many of them survivors or relatives of victims of the bloodiest period of Guatemala’s 36-year civil war.

Rios Montt had evaded justice for decades, protected by a scrum of top brass and Guatemalan grandees. Then came May 10 and the historic decision by the High Risk Tribunal, whose 718-page ruling found the hardliner general guilty and sentenced him to 80 years confinement. The counterpunch followed ten days later, when a five-justice panel of the nation’s highest court struck down the verdict three votes to two, sending the case back to a lower court.

For some that reversal struck a familiar chord. In a region where military men have often called the shots and the comfortable classes generally applauded, due process has been observed in the breach. But that’s no longer the case in a hemisphere where civil society institutions and the rule of law are on the mend; nor, indeed, is that quite what happened this time in Guatemala. The decision by Guatemala’s supreme court actually attests to the very 21st-century story of a tender young democracy’s resilience.

Yes, the high court, on a point of order, ruled that the proceedings be partially reset to the halfway mark of the trial against Rios Montt and his former intelligence chief, Mauricio Rodriguez Sanchez. Score one for the generalissimo. What the supreme court did not do, however, was acquit Rios Montt or declare a mistrial. Rather, the high court was called to review events at the outset of the trial when, after clashing with defense lawyers, judge Yazmin Barrios expelled Rios Montt’s chief attorney from the courtroom.

That move prompted defense lawyers to cry foul, arguing that Rios Montt had been deprived of his own counsel and so forced briefly to rely instead on his codefendant’s lawyers. (Critics parried that the general’s attorney had baited the judge into the rash move, gambling on a mistrial to preempt an imminent guilty verdict.) Alleging a "due process violation," Rios Montt filed for a mistrial as the case was winding to a close. Instead the Constitutional Court ruled to set aside the verdict and rewind the trial to April 19, when the prosecution had just rested its case.

This was a letdown to human rights advocates who argued that the rollback essentially gave the general a second crack at the mountain of evidence against Rios Montt and threw the whole case into legal limbo.

Contrary to some hysterical reporting, though, the nation’s most notorious military man is not off the hook. Rios Montt remains under house arrest, and must yet answer to charges of genocide that no Latin American leader has ever faced in his homeland. "Ok, the case was rolled back, halted, however you may describe it. Yes, again, this is not the linear justice many of us would have liked," says Christopher Sabatini, a Latin America scholar who edits the journal Americas Quarterly. "I don’t want to be a Pollyanna about it, but ten even five years ago, who would have thought that we’d get this far? This is a huge advance for Guatemala."

The same can be said of many other countries in the region. Once cartooned for its kangaroo courts and two-fisted martinets who routinely got away (literally) with murder, Latin America is under repairs. Most heads of state are chosen by free and fair elections. Except for Cuba and a handful of tropical autocracies in thrall to the model of the late Hugo Chavez’s "Bolivarian revolution," freedom of expression and individual liberties are widely respected. Though populism flourishes and voters still swoon to the charmer on the balcony, most national leaders accept that they must answer to public opinion.

More tellingly, the rule of law has replaced the whim of the caudillo, the textbook charismatic leader who ignores the law or bends it to fit a personal agenda. Once-untouchable strongmen have been brought to justice. Arrested in Chile and sent back to Peru in 2007 on charges of crimes against humanity and corruption, former dictator Alberto Fujimori is behind bars. Argentine general Jorge Rafael Videla, who presided over the worst moment of the country’s dirty war, which saw 30,000 killed or "disappeared" from 1976 to1983, died in prison last month.

The reckoning is not only for military men. In Brazil last year, the supreme court convicted 25 people of high crimes, among them some of the most trusted aides of former president Luiz Inácio Lula da Silva. Their misdeeds included embezzlement, money laundering, influence peddling, and criminal conspiracy in a massive congressional vote buying scandal, known colloquially as "the monthly payoff." Though none is yet serving time, the high court’s ruling shattered a smug conviction in Brazil that "only chicken thieves go to jail," never the high and mighty.

Not only did the supreme court defy the ultra-popular Lula by convicting some of his closest confidants — it did so while Lula’s Workers Party was still in power. More remarkably, eight of the 11 judges on the high bench were appointed by Lula or his chosen successor, Dilma Rousseff. Likewise, the federal police investigators and the attorney general tasked with prosecuting the payola case also owed their jobs to Lula. Political scientists Carlos Pereira and Greg Michener, of the Getúlio Vargas Foundation in Rio de Janeiro, called the case "one of the most striking political corruption trials in recent history and a very rare democratic success."

Guatemala should be viewed in the same context. Storied for its string of dictators, their gringo sponsors, and multinational fruit companies, the onetime "banana republic" has shown some surprising democratic reflexes. Driving the case against Rios Montt was a "dedicated core" of attorneys and human rights activists, says Sabatini. Their efforts were backed by the fearless attorney general Claudia Paz y Paz, who bucked death threats and the Guatema
lan brass to press formal charges.

The diminutive, curly-haired 46-year-old showed her mettle in 2011, when she brought four soldiers to justice — and eventually to jail — for a 1982 civil war massacre that took over 200 lives in a town called Dos Erres.

Rios Montt, for his part, remains confident. His legal team deployed every move in the playbook to void or stonewall the trial. José Miguel Vivanco, Human Rights Watch’s director of the Americas, tells of nearly 100 motions filed by the defense during the proceedings. But this is simply high-priced lawyers doing what lawyers do best. And though some human rights advocates whisper of conspiracy and speculate about heavy hitters leaning in behind the scenes, no evidence has emerged of judges being bought or cowed by higher-ups, much less of a midnight call from the red phone of the presidential palace.

In a nation of fevered ideological convictions, the nation’s top prosecutor continues to do what she has done from the beginning, carrying out her job untroubled by partisan noise or would be meddlers. Notably, she was reappointed to her to the post last year by none other than president Otto Peréz Molina, a retired general who fought the civil war under Rios Montt and denies there was genocide.

"The justice system is a stress test for democracy," says Michael Shifter, president of the The Inter-American Dialogue, a Washington policy think tank." Despite all the problems and setbacks, Guatemala has made some progress." Though surely no fan of the nation’s chief prosecutor, Peréz Molina knew better than to meddle in a land growing into democracy. The historic genocide case against one of the world’s iconic strongmen is not over. "That it has come this far in a country like Guatemala, where impunity was the rule and indigenous people were not considered citizens, is pretty close to a miracle," says Vivanco. That in itself is a Latin American story worth telling.