Written by Naomi Roht-Arriaza & Susan Kemp (riosmontt-trial.org):
Although it is unclear whether the trial of Efrain Rios Montt and Mauricio Rodriguez Sanchez will be resumed, it is worth evaluating the only document that specifically examines the question of guilt or innocence of the accused: the judgment of May 10, which in the eyes of world will probably end up being the final pronouncement on the case. That judgment has already started to circulate around the world, creating a legal precedent and contributing to the work of other national and international courts on the issue.
For example, the judgment emphasizes sexual violence against women and girls, noting that not only does such crime include acts that cause physical and mental damage but also that it demonstrates an intent to destroy the group. It thus coincides with the conclusions of the International Court of Rwanda in the Akayesu and Semanza cases and adds new elements of jurisprudence. Equally important is its discussion of the issues of forced displacement and psychological damage, which also creates an important precedent in the case law on genocide. But there are several aspects of the judgment that merit comment in order to clarify some of the fundamental issues that might create confusion.
First, this is a judgment that concerns an individual’s responsibility, and not that of the state. Criminal trials generally do not serve to establish the guilt of states or institutions—only individuals. In recent times, there has only been one attempt to establish state responsibility for genocide, and in that case (Bosnia v. Serbia) the International Court of Justice did not find Serbia guilty of genocide but did find that it had not adequately prevented and punished the genocide that was committed. All other genocide trials have been of individuals. The May 10 judgment found Ríos Montt guilty not because he was a head of state or head of the army, per se, but because of his acts and omissions as an individual. Contrary to what some have said, in the international arena it is understood that a criminal trial is not only not binding on the state, but that its purpose is precisely to point out that those who choose to commit crimes act as individuals and are not merely part of abstract entities. Moreover, it is a way to avoid accusing an entire institution of illegality.
What is relevant is the intent of the accused, and not that of each of the members of the armed forces to which that person belongs. Hence, the fact that members of the group under attack are found within the armed forces is irrelevant. And it is the mark of a democratic state that it proves its competent to prosecute those who violate the law and therefore establishes itself as a place where the rule of law prevails. Thus, for example, the admittance of the countries of the former Yugoslavia into the European Union was conditional upon the delivery of persons accused of crimes against humanity to the International Tribunal, as a sign of their commitment to ending impunity.
Second is the issue of intentionality. Why, exactly, does the judgment say that genocide occurred? It talks about the designation of the Ixil ethnic group as an “internal enemy,” which led the Army to attack this group with no distinction between combatants and civilians. The definition of genocide does not require the killing of the entire group—something that no genocide has ever achieved—but rather that the perpetrators hold the intention of finishing off the group, in whole or in part. In fact, it is not necessary to even kill anyone: there are four other acts that may also constitute genocide. Although the motive was to end the guerrilla war, the intention was to do so by finishing off a portion of the Ixil ethnic group. This extremely important point meshes with national and international criminal law, both of which distinguish between motive and intent.
Thus, for example, the motive of General Krstić in Srebrenica, Bosnia, was to achieve a military advantage, and he achieved it by cleansing the area of its non-Serbian male population. There were no racial motives. However, the ICTY reiterated that one must not confuse the motive with the intent. This is important, because in every case of genocide after the Second World War there have been a variety of motives, including motives of military counterinsurgency. As the expert Marta Casáus Arzú stated, when these are combined with an undercurrent of racism and dehumanization, it can trigger a genocide.
A third thing stands out: for everyone, detractors and supporters, it was of paramount importance that Rios Montt be convicted of genocide and not only of crimes against humanity. The symbolic importance of a conviction for genocide is undeniable. But international crimes are not ranked hierarchically—one is just as serious as the other. And all their definitions, characterized by specific legal elements within which the facts must be reconciled, fall short of the magnitude of the horror of the events. To create hierarchies of such offenses means that there is a hierarchy of victims and that some are more important than others. The lesson of the judgment is precisely this: that every victim deserves respect for their rights.
In sum, although it is necessary and healthy to hold public discussion about the judgment, it is equally necessary to reject the spread of myths based on confusion about the crimes. The legal reality is that a criminal trial places responsibility on an individual and not on an entire state, much less a society. That to act with a military motive does not exempt a person from responsibility for genocide or for dereliction in their duties toward humanity. Nor are the accused exempted by the fact that the armed forces to which they belong include people of the same group. Finally, all these crimes are a blow again values held the world over; they should be investigated and their victims given dignity.
Naomi Roht-Arriaza is Professor of Law at the University of California Hastings: Hasting College of Law in San Francisco, USA. Susan Kemp is an attorney specializing in international law and advised the International Center for Transitional Justice in New York on this trial