I am pleased to present a guest blog by Matt Eisenbrandt, Legal Director at the Canadian Centre for International Justice. The CCIJ has been heavily involved in the case of Jorge Vinicio Sosa Orantes, which recently saw an extradition decision issued by the Alberta Court of Queen's Bench. Their web page on the case can be found here.
In 1982, a special forces unit of the Guatemalan army, known as the Kaibiles, invaded the community of Las Dos Erres and murdered over 200 civilians. The massacre was part of a deliberate “scorched earth” campaign implemented by dictator Efraín Ríos Montt, and it was carried out systematically over three days. Citizens were killed with a sledgehammer, women were raped and small children were thrown down a well. Of the town's entire population, only two young boys, one of whom is now a Canadian citizen, are known to have survived.
The testimony of Kaibil soldiers who were in Las Dos Erres indicates that Second Lieutenant Jorge Vinicio Sosa Orantes was a leader of the operation. Witnesses have said that Sosa, in addition to orchestrating the massacre, killed people with the sledgehammer and shot a gun into the well.
Sosa, a Guatemalan by birth, is a naturalized citizen of Canada and the United States and now he is caught in a tangled web of international justice involving all those countries. Sosa was arrested in Canada on January 18, 2011, based on a request from the United States. The U.S. government is seeking to try Sosa not for the crimes he allegedly committed in Las Dos Erres but instead for lying in his application for U.S. citizenship.
The U.S. indictment is, we must assume, a frustrating result of an inadequate U.S. legal regime. Though it has a long-standing universal criminal jurisdiction law for torture and a newer one for genocide, the United States never passed such legislation for crimes against humanity or war crimes. The latter are the categories into which Sosa’s alleged acts most easily fit.
Presumably, the United States has chosen the naturalization fraud charges in order to hold Sosa accountable for something. The U.S. government similarly prosecuted another of the Kaibiles, Gilberto Jordan, in 2010, winning a guilty plea and a ten-year sentence. Yet with Pedro Pimentel Ríos, who was also allegedly at Las Dos Erres, the United States deported him to Guatemala.
Fortunately, a return to Guatemala no longer automatically leads to a life of impunity, at least for low-level officers. On August 3, 2011, in a ground-breaking decision, a court in Guatemala City convicted four men for their participation in the Dos Erres massacre and sentenced each of them to over 6000 years in prison. The result marks the first time any soldiers have been held accountable in Guatemala for their roles in the many massacres carried out by the Army. There is hope that others indicted in the case will be brought to justice though many obstacles still remain.
Guatemala has now asked Canada for Sosa’s extradition on counts of murder and crimes against humanity. This puts Canada in a potentially difficult situation. The Canadian government will not want to upset the United States but to send Sosa there on comparably weaker charges would fail to provide full accountability and it would likely result in a violation of Canada’s international legal obligations.
The obligation to extradite or prosecute – aut dedere aut judicare – is clear in certain treaties like the Convention against Torture. Whether there is an equivalent obligation in customary international law for crimes against humanity or war crimes in non-international conflicts is still being debating. There is, however, a sizeable chorus saying that such an obligation now exists. If it does, then if Canada sends Sosa to the United States for fraud rather than to Guatemala for crimes against humanity, the Canadian government would arguably violate international law.
There is another solution however, one for which my organization, the Canadian Centre for International Justice, has strongly advocated. Canada can submit the case to its own authorities for the purpose of investigation and, if the evidence merits, prosecution in a Canadian court. Through the Crimes Against Humanity and War Crimes Act, Canada implemented the Rome Statute and confirmed the jurisdiction of Canadian courts over genocide, crimes against humanity and war crimes committed abroad when the suspect is later found in Canada. The Act has already been used successfully in the 2009 Munyaneza case to convict a man who killed and raped civilians during the genocide in Rwanda. Another Rwandan man, Jacques Mungwarere, will likely go on trial in 2012.
A criminal process here would fulfill Canada’s obligations by following the “prosecute” path in the obligation to extradite or prosecute.
The case may be reaching a critical juncture. On September 2, 2011, the Alberta Court of Queen’s Bench ruled that the legal and evidentiary requirements for extradition to the United States have been met. Depending on Mr. Sosa’s decisions concerning appeal, the case will next move to the Minister of Justice for a final decision about surrender to the United States.
We are in close contact with those representing the families of the civilians killed in Las Dos Erres. For them, a U.S. prosecution for fraud and a possible sentence of ten years or less would not be nearly enough for a man accused of murdering their relatives in cold blood. They either want Sosa prosecuted in Canada or extradited to Guatemala to stand trial for crimes against humanity.
 As though this scenario was not sufficiently complicated, Sosa has also been indicted in Spain as part of the Guatemala Genocide Case. Spain has not yet officially asked Canada for his extradition and it is unknown if or when that government will do so.