Rigoberta Menchu’s attempt to bring former members of military regimes to justice in Spain has hit a significant setback this week. The Constitutional Court ruled that an extradition request for them to appear in Spain should not be honoured since Spain has no jurisdiction over crimes committed in Guatemala. Menchu brought the case in Spain since she felt it would be impossible for any case to prosper in Guatemala. She has indeed been proved right – because all those parts which needed to be dealt with in her home country have been frustrated at every turn, to the extent that it is difficult to see how it can now proceed at all. The Menchu Foundation has condemned the ruling as “partial and political”.

The case was first brought in Spain in December 1999 using the principle of universal jurisdiction. This principle defines some crimes as so serious that they can be tried in any jurisdiction – in fact states parties to the Genocide Convention 1951 are theoretically obliged to take action. Eight members of former military governments were named, for the crimes of genocide, and also special mention was made of the arson attack on the Spanish embassy in 1980 and the murder of several Spanish priests. It also made specific reference to the paralysis into which human rights cases brought in Guatemala generally fell. In an irony which does not seem to have been picked up, the reason why it has taken so long for the case to proceed was due to legal action in Spain, as the courts there tried to argue that they were not competent to try it. This was inconsistent with their acceptance jurisdiction in other instances, such as the high profile Pinochet case and cases against former members of Argentina’s military junta, and was eventually overturned.

A Spanish prosecutor, Santiago Pedraz, visited in June 2006 intending to interview witnesses and the accused, but all his actions were blocked by legal challenges. He then arranged that international arrest warrants be issued for the accused, and it is over these that the current appeal has made its way to the Constitutional Court. Of those favoured by the ruling the most well-known is Efrain Rios Montt, who in any case takes up a position in Congress on January 14 when the new government takes office. He hopes that this will give him total immunity, though it has been argued that it would not protect him from extradition proceedings. It seems that needs the action of a compliant Constitutional Court.