From the International Justice Monitor, originally posted here.
By Sophie Beaudoin
Last Tuesday, November 24, Guatemala’s Supreme Court of Justice was scheduled to hold a hearing on the Inter-American Court of Human Rights’ decision in the case of the enforced disappearance of former guerrilla commander Efrain Bamaca. However, the hearing was suspended after a motion was presented by former Colonel Julio Roberto Alpirez, who, according to prosecutors’ investigation, could have been responsible for Bamaca’s disappearance. His motion aims to force all thirteen judges sitting on the Supreme Court to recuse themselves―a motion the court will decide on in the upcoming weeks. But how the Supreme Court decides to address the Inter-American Court’s ruling could reopen a case that has been shelved for many years, regarding a crime for which no one has ever been held accountable.
Efrain Bamaca, also known as “Commander Everardo,” is one of the estimated 45,000 victims of enforced disappearance during Guatemala’s 36-year long conflict, according to a UN-backed truth commission. He was commanding the Luis Ixmata Front, operating from the guerrilla group called Organization of People in Arms (ORPA) in the south-west part of the country. During a confrontation with the army that took place on March 12, 1992, in Nuevo San Carlos municipality in Retalhuleu department, Bamaca was allegedly abducted by the army. According to witnesses, he was seen in different military installations, illegally detained and with signs of having been tortured. Although relatives have sought to locate his remains, to date his whereabouts are unknown.
At the time Bamaca was abducted, former Colonel Alpirez was head of Presidential Security Department, otherwise known as the Archivo. The Archivo was a military intelligence unit within the Presidential General Staff notorious for enforced disappearances, extrajudicial killings, and torture. Alpirez was first indicted in 1996 for his alleged responsibility in Bamaca’s disappearance, but the charges were dropped and the case dismissed on March 8, 1999. The case was closed as a criminal preliminary judge decided that no new evidence could be brought in the future to prove accountability for the crimes.
On November 25, 2000, the Inter-American Court of Human Rights decided that the State of Guatemala had infringed the right to personal liberty, personal integrity, right to life, right to judicial protection and judicial guarantees, and its obligation to prevent and punish torture. The court ordered the state to effectively investigate the facts to identify the perpetrators, and prosecute and punish them. The court reiterated its order on February 22, 2002, when it decided on costs and reparations, and in its following resolutions monitoring the country’s compliance with the November 2000 decision.
Accordingly, on December 10, 2009, the Attorney General’s Office asked the Supreme Court to annul the 1999 closure order. On December 11, 2009, the Supreme Court of Justice argued that according to the pacta sunt servanda principle, the state could not call upon its national legislation to justify its failure to comply with its international obligation to effectively investigate grave crimes, and annulled the order that had closed the investigation related to Bamaca’s disappearance. Former Colonel Alpirez appealed the decision before the Constitutional Court. Guatemala’s highest tribunal awarded the appeal on August 25, 2010, arguing that the Supreme Court did not elaborate on the reasons why the 1999 resolution that closed the investigation was illegal, and the investigation was suspended.
Following this decision, on November 18, 2010, the Inter-American Court of Human Rights emitted a resolution to monitor national compliance with its decision from November 2000. It recalled that the nature and gravity of the crimes impeded any closure of the investigation and that the state has the obligation to eliminate all mechanisms that directly or indirectly prevent investigation and promote impunity.
Consequently, on December 21, 2010, the Attorney General’s Office, through its special unit overseeing conflict-related cases, once again requested before the Supreme Court the execution of the Inter-American Court’s decision from 2000. In a resolution dated January 18, 2011, Guatemala’s Supreme Court of Justice ruled that decisions from the international tribunal are mandatory and that all obstacles to the application of the rule of law and human rights have to be removed. The court’s criminal chamber thus annulled the preliminary judge’s decision from 1999 and re-opened the investigation to identify, prosecute, and punish the perpetrators responsible for Bamaca’s enforced disappearance.
Once more, Alpirez appealed the decision. On April 13, 2011, the Constitutional Court welcomed the appeal and ordered the Supreme Court to hold a hearing where all the parties involved, including civil parties and suspected perpetrators, will be able to argue before the court regarding how the Inter-American Court’s decision should be carried out. That hearing was scheduled to take place November 24 but was suspended when Alpirez’s defense attorney presented a recusal action against all 13 Supreme Court. The recusal motion now must be resolved before the hearing can proceed.
Relatives of the victim, including his wife, American attorney Jennifer Harbury, have been fighting for justice in Guatemala for more than 20 years. After all these years when the case seemed forgotten, the Supreme Court could re-open the investigation and individuals could finally be held accountable for Efrain Bamaca’s disappearance.