It's exciting being here in Guatemala when there are advances in the trials we follow. Last week some great news came out about the case of forced disappearance in the village of Choatalum, the only case currently being tried for the crime of forced disappearance in the courts here. (i)
Felipe Cusanero Coj is accused of being responsible for the forced disappearance of six members of the community in 1982. The defense in the case had argued that as forced disappearance was only defined as a crime in Guatemala in 1996, after the events took place, the trial went against the Guatemalan constitution which states that laws can not be retroactive.
However the Constitutional Court has resolved that the crime of forced disappearance is permanent, as it continues to be committed while the victims continue to be disappeared. Therefore the argument of the "irretroactivity" of the law can not be used to prevent the court proceedings from continuing.
The Constitutional Court's decision is of pivotal importance in a country where, by many accounts, some 45,000 people were disappeared during the 36-year armed conflict. Those disappeared were kidnapped, taken to unknown locations, and it is assumed that they were tortured and then killed. Because of the secrecy within which the disappearances were veiled, the perpetrators were able to act in a state of complete impunity. The relatives of the victims never found out about the fate of their loved ones and to this day live with this uncertainty.
Forced disappearance is classified as a crime against humanity. The American Convention Against Forced Disappearances, in article 2 considers forced disappearance to be the negation of the liberty of one or more people by State agents or by people or groups who act with the authorization, support, or acquiescence of the State, followed by a lack of information or the refusal to acknowledge the act of the disappearance, or to inform as to the whereabouts of the victim. This failure to provide information impedes the exercise of legal resources or due penal process. (ii)
It is seen as an assault on human dignity and concretely violates several of the basic human rights defined in the Univeral Declaration of Human Rights, including the right to life, liberty, and security (article 3); the right to not be subjected to torture (article 5); and the right to not be arbitrarily detained (article 9), amongst others. (iii)
Widely used in the past as a mechanism for state terror throughout Latin America, many trace the practice of forced disappearance back to the holocaust in Europe during World War Two, and to Hilter's decree of "night and fog". Let's hope that with the Guatemalan Constitutional Court's resolution in this precedent-setting case some of the fog that has settled over this amazing country can start to clear.
(i) To read the article from the Prensa Libre (in Spanish), click here.
(ii) Report by GAM / Oxfam: La desaparición forzada en Guatemala, March 2007