Fighting Femicide the right way

Femicide in Guatemala reached a new height altogether during the 36 year long civil war, as many Mayan Ixil women faced the brunt of systematic policies of genocide through rape and brutalisation. As much as an undercurrent in conflict, femicide seems to subsist with as much rampancy in peacetime as it did in war time. There has been a history of violence and against women in Guatemala – no matter what form it manifests in. In 2012 alone, as many as 708 women suffered violent deaths consequent, according to the National Institute of Forensic Sciences. In 2013, up until June, there were 403 deaths. In Central America, the Central American Integration System and the Council of Ministers for Women in Central America have ranked Guatemala as the nation with the largest number of killings of women in the region.

Engendering justice against such a backdrop is necessary in the Guatemalan milieu. A separate Court for Femicide and Other forms of Violence against Women has been constituted in the province housing Guatemala’s capital city. Comprising three women judges, the country has come to earn the distinction of being the first in the world to so much as even have a specialised court for femicide and other forms of violence against women. Created by the Law against Femicide and other forms of Violence against Women, the court came into existence after approval in 2008, as a strategic response to the slew of murders of women in the country. Besides punitive measures, there are also preventive measures in a bid to protect the right of women to a life free from violence of any kind. It criminalises conduct of VAW, and also imposes penalties of varying degrees. The special court has already proved its prowess – having earned a sentencing proportion of over 30%.

What sets these courts apart is the fact that they have engendered the law – evaluating each case in keeping with the gender perspective, analysing each case, its facts and circumstances in keeping with the needs of gender justice. The court also ensures that its victims and witnesses are provided for – as it has a psychologist, a social worker, day-care facilities and other facilities that can engage children during their mothers’ participation in court procedures.

These courts have definitely been a “first step” of sorts. There are teething troubles, of course – whether in that testimony remains the chief source of evidence, or in that these courts are yet to have their presence in all parts of the country. Nevertheless, Guatemala has shown the world the tremendous potential of vehicles for engendered justice.

By Kirthi Jayakumar

Baby and Bathwater go out of the Window.

Mr. Bumble got one thing right. The Law IS an Ass indeed. In the countless number of hours and days I spent poring over my books at law school, the main thing that struck me no matter what branch of law I was studying at that moment, was how much the law focuses on legalities and procedure. And how little the law focuses on justice. Justice is an interesting concept, because it means giving someone their due. There are tons of debates one can perceptibly spark off: how much justice is ever enough for a victim of irreparable damage from a crime? How can one decide that a given thing is justice in one case but the same thing is injustice in another? What is justice, really? Isn’t it subjective if A person is, or maybe three are, given the authority to decide what justice in a case is?

For the most part, legal practice seems so heavily focused on getting the procedures right. You have legal maxims that say that a person sleeping on his right cannot afford to wake up too late if he wants justice, or that the ignorance of a law is not a justification. What happens in societies where there are whole masses of people who don’t know where their next meal will come from? How can we expect them to know the law? Is it justice to demand that they should already know the law, and their ignorance is not excusable? What happens in societies where procedural requirements subvert the substantive, where delays in courtrooms are only because of the intervening actions of bureaucratic red tape?

Si, hubo genocido en Guatemala (Yes, there was Genocide in Guatemala)
Image from here

Let’s take a scenario. Your country’s faced war. The leader of your country, it appears from all the overwhelming evidence you have, has ordered genocide and pursued other campaigns that have been in flagrant disregard of all things human rights. A special court is constituted to try your leader and it convicts him for genocide. But before you can say genocide, the constitutional court of your country annuls the trial and throws it back by many days to the effect that the decision it passed does not hold good any longer.

Makes you angry, doesn’t it?

Well. That’s what people in Guatemala are going through right now. Why? Well. Because of procedure. Rios Montt was allegedly denied his right to due process. Don’t get me wrong – I’m all for audi alteram partem (or the fact that both sides have to be heard) and I believe that the accused should not be convicted before he is convicted. I am also pretty sound on my understanding and acceptance of detainee rights and the rights of the accused. This annulment clearly puts the case back into the docket. It is possible that there may be a retrial. It is possible that there may be a conviction, and it is possible that there may not. But the fact of the matter is that Rios Montt remains free. I don’t mean to judge this case at all, but when the evidence is overwhelming, why annul the trial? Wouldn’t it have been a wiser thing to offer Montt a chance to appeal against his decision, instead of nullifying it?

Annulling the trial to me, felt like throwing the baby with the bathwater. We make gains one step at a time, sometimes making these steps on tip-toes. But with a swipe, these gains go flying out of the window. 

By Kirthi Gita Jayakumar

And then the step back happens

The Nuremberg Trials were the first official instance when the world took cognizance of imputing responsibility and liability upon those in leadership positions for their involvement in crime. Since then, there have been few convictions of national leaders, while the greater tendency has been to lean towards peace-for-exile agreements, where leaders gain amnesty in exchange for restoring peace by leaving the country behind.

Breaking that trend were a couple of tribunals established for some of history’s worst war crimes – the ICTY, the ICTR, the Special Tribunal for Sierra Leone and the ICC to name a few. But for the first time ever, a domestic court has been founded to make an indictment concerning the complicity and involvement of a national leader in crime. Usually, the prosecution of a leader by its own domestic courts isn’t an easy task: the fear of a national leader and his supporters’ reprisals, the fact that there is a tendency to put peace before justice and the mere inability to try a national leader can tend to be a hindrance. That is why, especially, Guatemala’s own domestic court’s conviction of its former dictator: Efrain Rios Montt for Genocide and Crimes against Humanity is a breath of fresh air in a worldwide culture of impunity. Along with his intelligence chief, Jose Mauricio Rodriquez Sanchez (who was not found to  be guilty on all of the charges, but some), Montt had orchestrated the massacre of as many as 1711 people, the forced displacement of nearly 29,000 people, and even genocide of the Mayan Ixil by exposing them to conditions that were set to destroy their community.

Genocide is carried out with an intent to destroy in whole or in part, a national or an ethnic group, through a) Killing members of the group; b) Causing serious bodily or mental harm to members of the group; c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; d) Imposing measures intended to prevent births within the group; and e) Forcibly transferring children of the group to another group. In the Akayesu case the Trial Chamber of the ICC ruled that acts of rape can form an integral part of the process of destruction of a group. “These rapes resulted in physical and psychological destruction of Tutsi women, their families and their communities. Sexual violence was an integral part of the process of destruction, specifically targeting Tutsi women and specifically contributing to their destruction and to the destruction of the Tutsi group as a whole.” Sexual violence as genocide has been applied in this case as well. The Guatemalan court has explained that the intent to destroy the Ixil ethnic group was definitely there, and therefore sentenced Montt to 80 years in prison. This is the first ever time that a head of state has been tried, convicted and sentenced for genocide in and by a domestic court.

Despite all of the positive decision making, it has been ruled by Guatemala’s Constitutional Court that the trial has been annulled, and therefore, the conviction stands outlawed. With this ruling, all proceedings relating to Rios Montt have been thrown back until April 19.