Individualizing Accountability, the Trouble With

 The impacts of a Guatemalan court's decision to sentence former de facto head of state José Efraín Ríos Montt to 80 years in prison for the crimes of genocide and crimes against humanity are only beginning to be felt, and may yet be stymied altogether. The trial and conviction have been hailed as "a great leap forward in the struggle for justice in Guatemala." The three-judge panel, headed by judge Jasmín Barrios, has been rightly praised for its ability to withstand myriad delay tactics, cynical legal challenges, veiled threats, and intimidation from various actors. Yet the Constitutional Court is expected to address several pending legal challenges on Monday, May 20, any of which, including an order to annul the trial, emitted by a pre-trial judge, could erase this landmark ruling.

Sitting in the court room during the final week of the trial and witnessing the palpable tension among Guatemalans outside the chamber, I noticed a very interesting contradiction in the way various groups are struggling to address and argue the facts of the case.

To me it was striking to hear both Ríos Montt's and Rodriguez Sanchez' defense attorneys attempt to assign responsibility for these crimes to the commanders, soldiers, and other individuals who carried them out in the field. Cesar Calderon, the attorney for Rodriguez Sanchez, put it this way: “Criminal responsibility is personal and individual – each person must answer for that which they have done themselves,” referring to individual field commanders operating in the Ixil region. Ríos Montt himself, when he addressed the court, argued that he was "occupied by national and international matters" as head of state, and that while in such a role one must support his commanders, “each of these is responsible for his own territory.”

Meanwhile, the debate in the street and in the Guatemalan press was dominated by competing narratives that screamed "there was genocide in Guatemala! (Sí hubo genocidio!)" or "there was no genocide in Guatemala! (No hubo genocidio!)."

The rallying cries of both camps decline to address the facts of the case as they pertain to whether or not General Ríos Montt oversaw a genocidal campaign against the Maya Ixil (much less the commission of crimes against humanity), dwelling instead on whether or not genocide took place - in Guatemala. The focus on the country became more evident to me in the days after the ruling: in conversations about the trial with normal Guatemalans in and outside of Guatemala City, responses often (but not always) focused on what I took to be the culpability of the country itself. CACIF, a powerful, conservative business group laments on its website that the world will now see Guatemalans as genocidal, like the Nazis.

This first struck me as cynical or superficial, missing the point that Guatemala as a country was not on trial, nor was this a crusade against the armed forces, as many Ríos Montt defenders argued.

This is understandable, though, as no society wants to be associated with the kinds of atrocities that took place in Guatemala. Nor should a country necessarily be painted with the same brush of history that judges the actions of a few leaders.

The court said it was "absolutely convinced" that the massacres, forced displacement, the burning of homes, destruction of crops and use of rape were part of a systematic effort to eliminate the Maya Ixil culture" (you can find the entire 700-plus page verdict here, in Spanish). A project like that is never the sole product of one man, or even one institution. Accordingly, the court instructed the Public Ministry to continue investigating and prosecuting other individuals implicated in the commission of crimes against humanity during this dark chapter of Guatemalan history.

So while individuals should and will be held accountable, Guatemala should be asking itself the tough questions prompted by the decision against Ríos Montt. How is it that one man was able to engineer such widespread destruction of the Ixil culture? Why was it so easy for broad swaths of Guatemalan society to believe that the Ixil community (98 percent of them, according to some military documents) supported or abetted Leftist insurgents? Sitting President Otto Perez Molina, who served as an Army Major in the Ixil area under Ríos Montt during the time of the genocide, may also have some questions to answer. Digging further, have the racism, xenophobia, and economic conditions that permitted the commission of these atrocities changed since the 1980s? The international community has its own uncomfortable self-examination to do: Why were Americans so willing to believe, as President Reagan said, that Ríos Montt had really just got a "bum rap" and that really, human rights in Guatemala "were improving step by step"?

The trouble with individualizing accountability is that it lets society off the hook for allowing or creating the conditions that enable individuals like Ríos Montt to carry out mass atrocities in the first place.

The trend in transitional justice over recent decades has been towards individual responsibility--as opposed to national or institutional responsibility (or outright impunity!). This has been a positive development, and has allowed courts, both domestic and international, to bring individual war criminals to account for their actions. Is it possible though, that by saddling an individual with the responsibility--and therefore the punishment--for crimes against humanity we miss the opportunity to do the kind of deep, introspective soul-searching that would allow us to say with some authority "never again"? Does this trial and conviction (whether upheld or not) distract us from addressing the core social injustices that allowed these atrocities in the first place? Only time will tell, but it does seem that unless Guatemala can secure the conviction against Ríos Montt for crimes of genocide, and therefor recognize that, yes, there was genocide in Guatemala, the deeper questions will never be asked.

This trial has been lauded as a landmark decision that is supposed to have all kinds of implications for rule of law and justice in the country. But this can't happen unless Guatemalans (and others) see themselves as a little bit convicted too.

Want to see reform and development in Cuba? Stop denying Cubans the tools to do it themselves.

The Washington Office on Latin America's posted an article on three harbingers of change in US Cuba policy late last month. The first, and most significant of these, I think, is the recent statement by US Representative Kathy Castor from the Tampa area calling for an end to the US embargo on Cuba. The authors also noted the visit of popular Cuban dissident blogger Yoani Sanchez, which in itself may signal a small but important shift in policy within Cuba. Last, they point out that the US is apparently considering removing Cuba from the State Department's list of state sponsors of terrorism. While I would tend to doubt the possibility of Cuba being removed from this list any time soon, it seems that Representative Castor's position on the embargo--the first ever from Florida to oppose it--is indicative of a growing shift in attitudes among younger generations of Cuban Americans, Floridians, and Americans, more generally.

While the debate over US policy towards Cuba has raged for decades, barring major changes on the island, the status quo will likely continue for several years.  There are are however, several assumptions and implications about our Cuba policy and economic sanctions more broadly that I find worryingly absent in public debate on the issue.

One issue is the startling lack of a voice for Cubans living in Cuba. Many writers in the US portray a kind of arrogance or detached patrimonial concern for "what's best" for Cubans (I realize that I have limited standing here, advocating policy, having never been to the island, etc.). This is true on the left and the right, and includes Cuban Americans. Those who advocate reform, which include left-leaning reformists and free-trading conservatives, often do so believing that increased contact and trade between Americans and Cubans will encourage and equip Cubans to resist and overthrow the Castro regime. Those who oppose reform have traditionally cited the argument stemming from hard line Cuban American quarters that increased travel and trade "provides a source of hard currency for the Castro regime." Both positions tend to depict Cubans themselves as mechanisms--pawns even--in a quest shared by left and right to undermine communist rule: liberals hope to empower the people, while conservatives worry that the regime will itself be empowered at the expense of its people.

This manipulation (good intentions aside) for the sake of political change undergirds the logic of US sanctions levied against any regime. There are some exceptions to this generalization: in Iran, targeted sanctions are supposed the restrict the ability of elites (but clearly affect the citizenry) to finance and procure material for their nuclear project; in North Korea, sanctions famously targeted the ruling clique's taste for luxury goods. But in the majority of cases, sanctions are a blunt attempt to make the lives of enough of the citizenry miserable enough that they rise up and either overthrow the regime or force it to change or abandon the policy that triggered sanctions in the first place. The problem with our public discussion of sanctions though, is an overreliance on the the economic damage wrought by sanctions as an indicator of their success. In other words, if we see that sanctions are wreaking havoc on the economies (and lives) of a country, we generally say they are "working."

But the discussion usually stops there.

Throughout the 1990s sanctions against Iraq inflicted hyperinflation rates upwards of 4,000 percent, sky high child mortality rates, and a death toll of up to 500,000. Even in Cuba, while the economic policies of the Castro regime have done the most damage, sanctions have clearly had a major impact on the economics of families, communities, and the state--otherwise, why keep them around? Yet unlike many sanctions, those deployed against Cuba can hardly be considered "targeted sanctions." In fact, defined by the GAO as some of the most comprehensive on any country, the current embargo (recent adjustments notwithstanding) is nearly total.

In this sense, sanctions have "worked." In both the Iraqi and Cuban cases though, the people did not (or could not) force the kind of hoped-for change in policy or regime. Iraqis who did rise against Saddam in the post-Gulf War period were pummeled by chemical weapons. More recently, in Iran, another state to experience devastating sanctions, thousands who protested against rigged elections in 2009 were violently dispersed by regime thugs.

The Cuban opposition faces a different obstacle. US policy towards the island encouraged an "exit option" for many of those with the inclination or means to oppose Castro over the course of 50 years. This escape valve limited the effectiveness of groups who, absent a receptive destination for political exiles and refugees 90 miles from Cuba, would have exercised their "voice," (in the terminology of the late Albert Hirschman) and sought reform from within. (This is not to say that Cubans have not bravely resisted the Castro machine--indeed, many have paid dearly for doing so--only that the resistance movement was seriously weakened by so many having left the island.) In other words, while it seems clear that sanctions have achieved the proximate goal of damaging the Cuban economy over the course of half a century, there is no question that they have failed in the secondary goal of affecting change on the island.

Worse, many, including the widely read dissident blogger Yoani Sanchez, argue that the sanctions have only strengthened the Castro regime, allowing it to blame the US for decades of economic disaster and enabling it to survive well past its expiration date. Change to US policy then, should at the very least adopt a "first, do no harm" standard, and take away the ability of the Castros to blame US policy for their failures.

Beyond simply eliminating a tool by which the Castros oppress their own people, removing the embargo is the right thing to do because it restore the dignity of Cubans who have for generations been treated as pawns in the US government's conflict with the Castro regime. I am under no illusions that foreign policy calculus equally weighs strategic and humanitarian interests; it doesn't. Nor do I believe US policy towards Cuba is made in a political vacuum; it isn't. I am also not one to gush over recent liberalizing reforms on the island, positive though they may be. I do however join with others who see the potential for economic growth, and by extension empowerment of everyday Cubans as a result of increased trade and travel to the island, as a good in and of itself. And if an empowered Cuban populace also contributes to US policy objectives, well, maybe that is just a bonus.

Uruguay takes a step backwards on Human Rights

On Friday February 22, the Uruguayan Supreme Court put a stop to human rights trials stemming from that country's military dictatorship during the 1970s and 80s by calling a law that had turned over a 1986 amnesty unconstitutional.

The amnesty, passed by popular referendum in the years following Uruguay's return to democracy, was overturned in late 2011. The law, passed following an Inter-American Court of Human Rights ruling that declared Uruguay's amnesty in conflict with the country's treaty obligations, eliminated the statute of limitations on cases against former military and police officials alleged to be responsible for disappearances and other atrocities under the dictatorship.

However, the Supreme Court found this week that the 2011 law, passed by the president Jose Mujica's Broad Front (Frente Amplio) following several unsuccessful attempts to reverse the amnesty by referendum, to be unconstitutional. The finding, while not entirely unexpected, was widely denounced by human rights activists in Uruguay and beyond. President Mujica's party released a statement on its website denouncing the finding as an "obstacle in the search for truth and justice legitimately claimed by social organizations and victims of state sponsored terrorism."

Opponents of the decision vowed to take the fight against the amnesty law to the Inter-American Court, and to take legal action against the Supreme Court itself.

The finding affects dozens of cases brought by families and survivors of the military regime, which is believed to have disappeared around 200 individuals and tortured thousands more. While the scale of the violence that shook Uruguay during the Cold War seems perhaps less horrific than say, that of Peru or Guatemala (where nearly 70,000 and 200,000 individuals were killed, respectively, and countless more tortured, raped, beaten, etc.), the issue is highly divisive after 20 years of democracy in this country of just over three million. The finding is unlikely to be the last word on trials for abuses though, and human rights activists could find that the ruling only galvanizes their movement, providing the impetus to overturn the amnesty by other, constitutional means.

"An African Solution to an African Problem"

Last week, Senegal began setting up a court to try former Chadian dictator Hissein Habre for crimes against humanity. Habre led Chad between mid-1982 and 1990, coming to power and being forced out via coups. Under his command, the armed forces of Chad repelled attacks from Muammar Gaddafi's Libya in the north of the country, and fought a simmering civil war throughout the 1980s marked by torture, disappearances, and executions of regime opponents.

An estimated 40,000 people were killed and 200,000 tortured under Habre's rule.

Following a coup in 1990, Habre fled for Senegal, where he has remained under some degree of protection since. Belgium sought to have Habre extradited to stand trial in the Hague in 2005. Senegalese president Wade, who like many heads of state, worry about the precedent of trying leaders for war crimes, resisted calls to hand over Habre.

After the defeat of Abdoulaye Wade in 2012 however, Senegalese President Macky Sall negotiated the creation of an African Union-mandated court, paving the way for trial of the former dictator.

Writing on Aljazeera, Chandra Lekha Sriram observes that, assuming Habre does eventually stand trial, "What we might be seeing is a shift from the narrative of Habré as an African Pinochet, and international justice and the ICC as neocolonial, to the fruition of one possible model for "African solutions to African problems".

A possible "African solution" is hugely significant for several reasons. First, as Sriram again points out, this case would represent the first time a country's national court tries another country's former head of state for crimes against humanity. This model would provide an alternative path to bring political leaders to justice in addition to domestic courts, ad hoc international tribunals, or the oft-maligned International Criminal Court.

Second, and perhaps more significantly, the Senegalese model may set an important precedent for trying for former heads of state, and may build on a growing collection of jurisprudence and rulings breaking down the once insurmountable barriers to accountability for war crimes committed at the highest political levels.

Katherine Sikkink's 2011 book Justice Cascade (W.W. Norton & Co.) gives an excellent accounting of the barriers overcome in recent decades. The first countries to try former members of an oppressive military regime were Greece and Portugal, in the mid-1970s. These trials, while significant in that they were able to charge former leaders, were not human rights trials. They were trials for treason and overthrowing the state. Nevertheless, these trials “broke the back” of regime hardliners and supporters, and thus opened the door to the possibility of punishment for other abuses. 

The next experiment with trials of members of a former regime came in mid-1980s Argentina, when that country tried nine members of the former military regime. In the case of Argentina, however, prosecutors did in fact try—and convict—members of the military junta for human rights abuses committed between 1976 and 1983. As prosecutors continued to target low-level military officers (rather than just political-military leaders), this provoked a backlash in segments of Argentine society and regime supporters launched a coup attempt in 1987. This instance is hailed by some as proof that human rights trials destabilize new democracies.

Sikkink argues, however, that despite the backlash, coup attempt, and the amnesty laws and pardons that followed, the symbolic societal rejection of immunity for human rights abuses and the new relationship between the Argentine state and military were firmly in place. Furthermore, the initial successes in Argentina had already changed people’s beliefs and expectations about justice in transitional contexts throughout the globe. In the mid-1970s, when Greece and Portugal were experimenting with transitional justice, the idea of prosecuting heads of state for human rights abuses was unthinkable. After the Argentine trials, it was not.

Further, the Argentine trials informed a series of international treaties and conventions including the Convention Against Torture, The Genocide Convention, and the International Criminal Court--all of which embody and codify what was once a novel approach to international law: individual responsibility.

This idea of individuals—rather than states—being tried for crimes against humanity, combined with the ability of individuals to file complaints of human rights violations (in Argentina) is now a cornerstone of international human rights law.

Heads of state and senior political leaders have now been tried in a variety of fora: domestic courts (Pinochet, Fujimori, and now Efrain Rios Montt), international tribunals (the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda),  and the International Criminal Court, which handed down its conviction of Thomas Lubanga last year.

The Senegalese model is a positive step forward for accountability, especially in Africa. While any number of factors could prevent the trial--not expected to start until 2015--from yielding a ruling (death of the 70 year old defendant, political meddling, mishandling of evidence, etc.), the precedent and possibility of prosecution for current and future African (and non-African!) leaders are in themselves a positive development.

Rios Montt will be tried for genocide - Guatemala

Photo courtesy Skylight pictures

We learned yesterday, January 28 2013, that former army general and de facto ruler of Guatemala Efrain Rios Montt will face trial for charges of genocide. Rios Montt led the country during the most violent period of a 36 year internal armed conflict that resulted in over 200,000 deaths, the vast majority of which were innocent indigenous peasants.

Under his tenure (1982-83), the government carried out what many call a "scorched earth" campaign (specifically, he is charged with overseeing the massacre of over 1700 individuals) in the indigenous Ixil areas of of the country.

The former general and his defenders are using an interesting defense, claiming at once that Rios Montt either did not fully control his troops, or was not aware of the dozens of massacres of indigenous communities that happened under his watch. At the same time, Rios Montt et al are labelling the trial as an attack, not on the former general, but on the army as an institution--a clear appeal to public opinion, and maybe even to the popular president Otto Molina Perez, himself a former general who served under Rios Montt.

However, the discovery of a document called Plan Victoria (Victoria 82), sheds doubt on the general's plea of ignorance. The plan, signed by Rios Montt, identified the Ixil ethnicity as subversive and inherently supportive of the leftist rebels engaging the government in battle at the time. As part of a kind of "drain the swamp" strategy, the document planned the annihilation of indigenous communities, according to prosecutors.

On a related note, the documentary by Pamela Yates and Paco de Onis, Granito, includes footage from a conversation with the general in the early 1980s. In the footage, Yates presses the general on accusations of genocide. He denies it outright, of course, but goes on to brag about his tight control over the armed forces, which he presumably exercised in ordering the army not carry out such massacres. "If I can't control the army, then what am I doing here?" the general asks. Whether such footage will be used in the trial is uncertain (though it was used in previous attempts to try Rios Montt, in Spain), but I imagine the prosecution will strongly contest the general's purported lack of control argument.

**Update, Granito producer Paco de Onis writes in an email that "Outtakes from Skylight's documentary Granito: How to Nail a Dictator are being used as filmic evidence in the case to prove the prosecution’s command responsibility liability theory: that Ríos Montt ordered the targeted killings."**

The trial of a former dictator is, in itself, a major milestone in the fight against widespread impunity in Guatemala. A conviction would be a monumental win for the country's battered judicial system. Yet even bringing the man to trial,--as happened in Chile's prosecution of former dictator Pinochet--offers a major symbolic and normative achievement--eroding the reactionary narrative offered against getting too caught up in the past (read: seeking justice for past atrocities), or the mental and social barriers to seeking accountability for the highest political leaders, for example.

The very act of trying a former dictator helps to break down the veneer of legitimacy surrounding the period and acts in question, and helps break down impunity enjoyed by those involved in past atrocities, or those whose more recent crimes simply benefit from this umbrella of impunity. This is, arguably what happened in Argentina, Peru, and Chile, when, following trials of senior political-military leadership, the barriers to accountability for mid- and lower-level opperatives began to be swept away.

One can only hope that as Rios Montt, a pilar supporting impunity in Guatemala, is tried for crimes against humanity, that the umbrella of impunity that benefits organized crime, abusers of women, and gang members will be blown away.

Feliz Dia de la Mujer

EFE reported Friday that a group protesting violence against women was violently repressed by police in Tegucigalpa, Honduras. The group of around 200 women were protesting the high rates of femicide in the country, and taking advantage of the Day of Women to pressure the legislature to ensure the free exercise of civil, political, economic, social and cultural rights.

In 2012, there were 606 cases of femicide, according to the Violence Observatory at the National Autonomous University of Honduras. Moreover, the special prosecutor for Women's issues recorded over 22,000 reports of violence against women.

Femicide, which tends to get disproportionate media coverage (perhaps rightly so), makes up a small percentage of the 7,000+ homicides in Honduras. In Guatemala, there were 560 women murdered in 2012, down from 631 in 2011, and 695 in 2010. While the trend in Guatemala is a positive development, and reflects an overall improving security situation, the phenomenon in both countries is indicative of a general state of impunity and tolerance for violence towards women (and other underprivileged groups).

As with other types of crime, violence against women is complex in its most proximate causes (domestic disputes, infidelity, whatever the cause). However, there are a variety of social and institutional factors that permit or encourage the rise in violence against women that accompanied the dramatic rise in violence throughout the northern triangle countries over the past decade. First and foremost is generalized impunity, for most crimes, but especially those against women. Honduras, famously, has something like a 97 percent impunity rate--accounting for crimes reported to the authorities, which, in the case of violence against women, are few. It doesn't help, of course, that police are thinly stretched and poorly trained/resourced, in their pursuit of drug traffickers and gang bangers, or that private security has filled the gap of public security in many parts of the country.

International impacts of U.S. gun policy

One of the most stimulating things about international affairs, for me, is the struggle to grasp and understand the complex interactions of people, politics, and policies on events around the world, or in neighboring countries. The Western Hemisphere is place I find especially interesting because events in North, Central, and South America very often have impacts on, or (more likely) are influenced by the people, politics, and policies in the U.S., and my city of residence, Washington, D.C.

The issue of guns and gun control is one of those complex and messy issues I love to grapple with. The politics of guns is, as we see every few months in this country, highly personal and deadly serious. Yet, despite ubiquitous attempts to do so, solutions to gun-related crime (including, but not limited to spectacular mass shootings) do not fit on bumper stickers. The issue becomes more complex when we examine U.S. federal and state gun policies in an international context.

The Atlantic had a great writeup on the impacts of liberal U.S. gun policies on violence in Latin America. The article notes that 70 percent of guns seized by Mexican authorities from drug cartels in 2011 were U.S.-made. Importantly, these massive caches of high-calibre weaponry are generally purchased legally but used to disastrous (illegal) ends. The escalated conflict against violent cartels that began in 2006 has left over 60,000 dead in Mexico (the number may well be higher, as the Mexican government stopped releasing official figures, and exact tallies are unreliable).

While it is unreasonable to place the blame for all of these deaths on U.S. policy, the ease with which cartels access military grade weapons (not withstanding Operation Fast and Furious' allowance of some arms to cross the southern border) should at least give pause to those who defend current policies solely on the basis of 2nd amendment rights.

The problem doesn't stop in Mexico. The northern triangle countries of Central America (Guatemala, Honduras, and El Salvador) are awash in guns--again, many of which purchased in or provided by the U.S. (over the course of Cold War-era civil wars). Honduras has the highest murder rate in the world. El Salvador is not far behind. Easy access to guns is undeniably part of the problem.

While violence is the manifestation of decades (or centuries) of complex and tortured political histories in many Latin American countries (the frequent U.S. contribution to which is the subject of ample literature), Americans have a moral, if not legal responsibility to assess the impacts of their policies on their neighbors.

As if the question hasn't been asked before, where does one's right to carry stop, and another's right to live in security begin? The international dimensions of this question are not irrelevant.

I'm sure many gun advocates would take issue my separating rights to carry vs. right to live in security. My intention is not to question one's right to bear per se, (this is a topic for another conversation, which really shouldn't be separate from the international discussion but...) but to question the unfettered, increasingly unrestricted enjoyment of that right.

The right to buy (or sell) without restriction is not necessarily the same as the right to bear.

Thankfully, the debate following the shootings in Newtown may be pushing Americans to reconsider the ease with which military grade weapons are bought and sold. West Virginia Senator Joe Manchin and Virginia Senator Mark Warner (both enjoy high marks from the NRA) recently signalled their willingness to countenance more restrictive gun legislation. We'll see what happens.