IACHR Hails Progress Against Impunity in Guatemala and Expresses Concern About the Human Rights Situation of Indigenous Peoples and Women
March 27, 2012
Washington, D.C. – The Inter-American Commission on Human Rights (IACHR) carried out a working visit to Guatemala on March 7-10, 2012. The IACHR delegation was led by Commissioner Dinah Shelton in her capacity as Rapporteur for Guatemala and Rapporteur on the Rights of Indigenous Peoples. It also included the IACHR coordinator for the Mesoamerica Region and for the Office of the Rapporteur on Indigenous Peoples, Isabel Madariaga; the attorney for the Mesoamerica Region, Fiorella Melzi; and the attorney for the Office of the Rapporteur on the Rights of Indigenous Peoples, Cristina Blanco.
The purpose of the visit was to collect information on the human rights situation, with special emphasis on the situation of indigenous peoples. The visit also aimed to learn about the plans and programs the current government will implement in the area of human rights. To this end, Commissioner Shelton met with representatives of the State, international agencies, civil society, and indigenous peoples. During the visit the delegation also held working meetings on petitions and cases pending before the Commission, and gave a training workshop on the inter-American human rights system.
Commissioner Shelton notes that Guatemala has made significant progress on human rights, especially with respect to investigating the grave crimes against humanity that were committed during the internal armed conflict.
In that regard, she once again would like to recognize the Criminal Chamber of the Supreme Court of Justice for determining the self-executing nature of judgments in cases the IACHR has presented to the Inter-American Court of Human Rights—including the Street Children (Villlagrán Morales et al.), White Van (Paniagua Morales et al.), Bámaca Velásquez, Carpio Nicolle et al., and Dos Erres Massacre cases—and for ordering the Public Prosecutor's Office to conduct new investigations to determine the perpetrators and masterminds of the human rights violations established by the Inter-American Court in the respective judgments.
The Commissioner also notes the judgment issued recently against former soldier Pedro Pimentel in the case of the Dos Erres Massacre. He was convicted of murder and crimes against humanity for his participation in the 1982 massacre in which more than 250 people were killed.
The Commissioner also welcomes the reopening of the case involving the Plan de Sánchez Massacre. In 2011, five men were arrested and charged with having been perpetrators of that crime, and they are currently standing trial. In the Plan de Sánchez Massacre, a case the IACHR sent to the Inter-American Court, 268 people—most of them members of the Maya indigenous community—were executed by members of the Guatemalan army and civilian collaborators. The massacre took place on Sunday, July 18, 1982.
The Plan de Sánchez Massacre and the Dos Erres Massacre were two of the hundreds of massacres committed in Guatemala during the armed conflict (1960-1996). In the majority of cases, the massacres were committed against the Maya people, as part of a policy of scorched earth and genocide. The Commission for Historical Clarification recorded 626 massacres attributed to State forces.
Commissioner Shelton also takes note of the prosecution of Efraín Ríos Montt, a military general who, following a coup d'état, governed Guatemala in 1982 and 1983, one of the most violent periods in the Guatemalan armed conflict. Ríos Montt has been charged with genocide against the Maya people and with crimes against humanity. Retired generals Héctor López Fuentes and José Mauricio Sánchez have also been charged with genocide. The IACHR reminds the State that these processes must be conducted with full respect for the guarantees of independence, impartiality and a competent court, in accordance with due process.
As part of these efforts to investigate human rights violations of the past, the Commissioner trusts that the various agencies of the State—particularly the Defense Ministry—will guarantee complete access to all human rights archives and documents related to the internal armed conflict. Likewise, with a view to protecting human rights in Guatemala, the Commissioner hopes that initiatives to restrict access to information—such as Initiative 4328, which seeks to classify as confidential State-held information on military or diplomatic matters—will be rejected. This initiative was presented by the previous government and is currently in Congress.
Commissioner Shelton also praises the Public Criminal Defense Institute and the Criminal Chamber of the Supreme Court of Justice for their work in getting the death sentences of several individuals commuted to the maximum prison sentence, using judicial remedies based on the doctrine and case law of the Inter-American Commission and Inter-American Court.
The Commissioner also commends the approval of the Rome Statute by the Congress of the Republic on January 26, 2012. She trusts that the draft ratification will be signed and deposited in the United Nations Treaty Office.
Notwithstanding the progress noted above, Commissioner Shelton is deeply concerned about the grave human rights situation affecting indigenous peoples in Guatemala, a situation that is primarily related to the failure to adopt government measures to guarantee their rights over their land and natural resources. According to the information the IACHR has received, the lack of protection of indigenous territorial rights in Guatemala is characterized by a failure to recognize indigenous lands; the lack of a property registry or cadastre system that recognizes ancestral territories and makes it possible to protect the lands that belong to indigenous peoples; the acquisition of lands by companies without the State's direct supervision; and the execution of investment, development, and natural resource extraction projects in contradiction to international norms in these matters.
In this regard, the Rapporteur brings to mind that, in accordance with the norms and case law of the inter-American human rights system, indigenous peoples are entitled to tenure rights and ownership over the land and resources they have occupied historically; therefore, they have the right to be legally recognized as the owners of their territories and to obtain formal legal title to their lands and to have these titles duly registered. Further, pursuant to international norms in effect for the State of Guatemala, indigenous peoples and their members have the right to the delimitation and demarcation of their territory in such a way that they enjoy effective protection in practice. The Rapporteur thus urges the State of Guatemala to comply with its obligation to put into force legal and institutional mechanisms that ensure the recognition, titling, demarcation, and delimitation of indigenous peoples' collectively owned lands.
Of particular concern is the information received indicating that forced evictions of indigenous communities have resumed in various parts of the country. In particular, the Rapporteur is concerned about the way in which such evictions are being carried out. They have been characterized by the use of violence, which has even resulted in the death of indigenous persons; the participation of private security forces and military personnel in tasks that belong exclusively to police forces; the detention of authorities, leaders, and members of indigenous communities; and the destruction and burning of their goods, crops, and homes. Added to that are the precarious conditions and the food crisis in several of the indigenous communities that have been forcibly evicted from their ancestral lands.
In that regard, the Rapporteur strongly condemns the deaths of Antonio Beb Ak’, Oscar Reyes, and Margarita Chub Ché, members of the Q'eqchi Maya communities of the Polochic Valley, which were forcibly evicted in March 2011. The Rapporteur also urges the State of Guatemala to suspend the forced evictions, as they involve mechanisms that impinge on the territorial rights of indigenous peoples in a context in which they lack legal protection. The Rapporteur likewise calls on the State to comply with human rights standards in carrying out evictions, in particular the rights of indigenous communities and their members to life, humane treatment, personal liberty, and due process.
Additionally, the Rapporteur received information indicating that the State has granted licenses for the installation of hydroelectric power stations; the exploration and exploitation of construction materials; and the exploitation of metals and non-metals in indigenous territories. According to the information available, these concessions have reportedly been granted without the State having carried out a prior, free, and informed consultation designed to obtain the consent of the indigenous peoples and communities that would potentially be affected.
In view of that situation, the Rapporteur urges the Guatemalan State to adopt legal and institutional mechanisms to give compliance to the inter-American system's standards on potential plans and projects for development, investment, or concessions involving the exploration or extraction of natural resources in indigenous territories. In that regard, the Rapporteur reminds the State of Guatemala that States have the obligation to consult indigenous peoples and to ensure their participation in the decisions involving any measure that might affect their territories, taking into account the special relationship between indigenous and tribal peoples and their lands and natural resources. Moreover, consultation and consent are not limited to matters that affect indigenous rights to property, but also apply to other administrative or legislative actions by the State that have an impact on the rights or interests of indigenous peoples.
In Guatemala, the racism and discrimination that indigenous peoples continue to face is reflected, for example, in a disproportionate rate of poverty and extreme poverty among members of indigenous peoples. In addition, 58.6% of indigenous children under 5 years of age suffer from chronic malnutrition. Food and nutritional insecurity is manifested in the high mortality rate of young children, the lack of immunological development, and the presence of acute and chronic diseases. The Rapporteur welcomes the information she received during the visit with respect to the government's willingness to take steps to reduce chronic infant malnutrition by activating and adapting the national policy on comprehensive rural development. In that regard, she brings to mind that the State has a duty to hold consultations with indigenous peoples on the decisions that affect them. Taking into account the importance of implementing a comprehensive strategy that incorporates the multiple determinants of malnutrition, the Rapporteur underscores the potential importance, to this end, of protecting the property of indigenous communities and strengthening their use and enjoyment of their natural resources in accordance with their traditional practices.
The Rapporteur was also informed about extremely tense situations that have arisen in various regions of the country over the presence of companies in indigenous territories. The Rapporteur observes with concern the information received indicating that the State's response to incidents of social discontent has been characterized by the indiscriminate and protracted use of states of emergency; the disproportionate use of force on the part of security agents; the growing presence of military agents in conflictive areas; and the application of criminal prosecution mechanisms against authorities, leaders, and members of indigenous communities. Of particular concern to the Rapporteur is the information she received with respect to eight indigenous women said to have arrest warrants against them for allegedly committing the crime of usurpation, a situation apparently related to their opposition to mining activity in the Sipacapa and San Miguel Ixtahuacán communities.
In view of the foregoing, the Rapporteur urges the State of Guatemala to take priority steps to address the causes behind this issue. She notes that the IACHR has stated the following: "Criminalizing legitimate social mobilization and social protest, whether through direct repression of the demonstrators or through an investigation and criminal prosecution, is incompatible with a democratic society in which persons have the right to express their opinion."
The Rapporteur has also learned of the existence of a large number of complaints regarding attacks, threats, acts of harassment, and even murders of human rights defenders and of indigenous leaders and authorities who play an essential role in defending the rights of indigenous peoples. The Rapporteur observes that this is part of a context of violence against human rights defenders in Guatemala, manifested in the 409 attacks reported in 2011—a 34% increase compared to the previous year. The IACHR Rapporteur urges the State to promote the actions and measures that are necessary to investigate these complaints, punish the guilty, and provide support to the victims.
The Rapporteur was also informed about defamatory public statements made against members of indigenous communities who defend their rights, statements apparently made for the purpose of delegitimizing the demands of the indigenous peoples in Guatemala. The Rapporteur condemns such disparaging statements and feels she must commend the important efforts that authorities, leaders, and members of indigenous communities are carrying out in defense of their rights, efforts that have been recognized nationally and internationally.
During her visit, the Commissioner also received alarming information on the high level of violence in the country and the grave situation regarding the administration of justice. The Commissioner was informed by the Attorney General that despite the high rates of violence, violent deaths have dropped, from 6,600 in 2009 to 5,681 in 2011. The IACHR has stated that policies on citizen security must be assessed from a perspective that guarantees and respects human rights. The Commissioner reminds the Guatemalan State that such policies give rise to negative obligations involving abstention and respect, as well as positive obligations linked to the adoption of prevention measures.
In terms of the administration of justice, according to publicly available statistics, Guatemala has an impunity rate of 98%. In this context of impunity, the Commission especially commends and recognizes the work of Attorney General Claudia Paz y Paz, who since taking office in December 2010 has been able to bring charges against former high-level government officials for their participation in grave human rights violations.
The high levels of violence against women reported in Guatemala are another issue of deep concern to the Commission. According to statistics from the Public Prosecutor's Office, violence against women is the most reported crime, with more than 40,000 complaints lodged every year. According to data provided by the Presidential Commission against Femicide, 705 women were killed and 28 were reported dismembered in 2011. Moreover, of every 10 women who were killed, 3 had already reported being victims of acts of violence or had been granted restraining orders for their protection. According to information provided by civil society, there is still a tendency to blame women for the violence to which they fall victim.
While impunity in these cases remains very high, the Commissioner recognizes recent progress with the creation of specialized Criminal Courts of First Instance and Criminal Sentencing Courts for Crimes of Femicide and other forms of violence against women. These courts were established in Guatemala City, Chiquimula, and Quetzaltenango. In 2011, with the support of the Presidential Commission against Femicide, these courts handed down judgments in 335 of the 935 cases before them. That has led to the addition of specialized criminal courts on femicide in Huehuetenango and Alta Verapaz. The Commissioner hopes that these specialized courts will be expanded to all departments in the country.
On another matter, the Commissioner is concerned about information received concerning the violence to which justice operators fall victim, and the lack of a government response to the problem. The Commission brings to mind that, in compliance with the obligation to investigate and punish, the Inter-American Commission has established that the State must remove all obstacles and mechanisms of fact and law that maintain impunity; grant sufficient security to witnesses, judicial authorities, prosecutors, and other justice operators, and to relatives of victims; and take all steps within its reach to expedite cases.
The Commissioner was informed about initiatives to amend the Judiciary Career Law to address omissions and shortcomings in the current legal framework that regulates careers in the judiciary, such as instability in the posts of judges and magistrates. The Commissioner urges Guatemala's legislative authorities to promote such reforms and calls for these to be in line with the principles of independence and impartiality of judges and magistrates that pervade the universal and inter-American human rights systems.
In the course of her visit, the Commissioner also received troubling information regarding the vulnerability of migrant persons and regarding complaints indicating that despite the enactment of the Adoption Law, the business of illegal adoption reportedly continues to be carried out with the collusion of some State authorities.
During the visit the delegation also held working meetings on cases pending before the IACHR. In particular, the Commissioner welcomes the progress made by the parties toward reaching a friendly settlement agreement in the cases involving the forced disappearance of a married couple, Alma Libia Samayoa and Víctor Hugo Quintanilla (9.245), and the forced disappearance of Jorge Granados Hernández (9.552). The Commissioner also welcomes the significant efforts by the parties involved in Petition 793-06 (Osmin Ricardo Tobar Ramírez et al.), which refers to irregular adoptions of children committed by State officials. In these cases, the parties committed to sign friendly settlement agreements within the next two months. In Petition 1139-04 (Massacre in the Village of Los Josefinos), the State offered to take steps to comply with the friendly settlement agreement signed by the parties on December 18, 2007. With almost five years having passed since the signing of the agreement, the Commissioner trusts that the parties will make substantial progress this year. In Petition 992-05 (Carlos Antonio Pop), the Commissioner welcomes the fact that the parties came closer toward reaching a friendly settlement agreement; however, she sees some obstacles in the process.
During the visit, a training workshop was held on the inter-American human rights system, geared toward indigenous leaders in Mesoamerica. Participants included indigenous leaders and attorneys from Guatemala, El Salvador, Honduras, Panama, Mexico, Costa Rica, and Nicaragua.
The delegation met with the following government representatives and officials: the President of the Republic, Otto Pérez Molina; the Minister of Foreign Affairs, Ambassador Harold Caballeros; the Minister of the Interior, Héctor Mauricio López Bonilla; the Director of the Police, Gerson Oliva; the President of the Supreme Court of Justice of Guatemala, Thelma Esperanza Aldana Hernández; the Attorney General, Claudia Paz y Paz Bailey; the Minister of Social Development, Luz Lainfiesta; the Secretary of Agrarian Matters in the Office of the President, Elmer López; the Representative of the Presidential Commission on Rural Development, Jorge Morales; the Presidential Commissioner against Femicide, Alba Trejo; the Secretary of Peace, Antonio Arenales; the President of the Presidential Steering Committee for Executive Policy on Human Rights (COPREDEH), Ruth del Valle; and the head of the National Reparations Program, Jorge Herrera. The delegation also met with representatives of the Presidential Commission against Discrimination and Racism (CODISRA); the Office for the Defense of Indigenous Women (DEMI); the Ministry of Education; and the Ministry of Culture and Sports. Meetings were also held with the President of the Congressional Board of Directors, Gudy Rivera Estrada; the Vice President of the Congressional Board of Directors, Mario Santiago Linares; the President of the Congressional Commission on Human Rights, Luis Fernando Pérez Martínez; Congressmen Manuel de Jesús Barquín and Amilcar de Jesús Pop Ac; and Human Rights Prosecutor Sergio Morales Alvarado and his team.
In the meeting with the President of the Republic, the Rapporteur was briefed on the programs on his government's agenda, that is, the peace, security, and justice pact; the fiscal pact; and the "zero hunger" pact. During the meeting, the Commissioner raised a number of issues, including the importance of making progress on matters concerning justice and reparations with regard to the armed conflict; the need to consult indigenous peoples on the plans and projects that affect them; the concern over the high rate of malnutrition, including chronic malnutrition, among indigenous children; the alarming statistics on violence against women; and the concern about detention conditions for persons deprived of liberty. She also thanked the State of Guatemala for its willingness to reach friendly settlement agreements in the cases pending in the inter-American system.
Meetings were also held with the Representative of the United Nations Office of the High Commissioner for Human Rights in Guatemala, Alberto Brunori, and with the head of the International Commission against Impunity in Guatemala (CICIG), Commissioner Francisco Dall’Anese. The delegation also held productive meetings with indigenous organizations and with nongovernmental organizations.
The Commission appreciates the cooperation extended by the government for this visit to be carried out, as well as the information provided by various State authorities on the challenges they face in the area of human rights. The IACHR also thanks the indigenous leaders and traditional authorities, as well as other civil society representatives, for the profound and detailed analysis they provided in the various meetings on the major human rights problems affecting Guatemalan society and the challenges to move forward in the protection of fundamental rights.
A principal, autonomous body of the Organization of American States (OAS), the IACHR derives its mandate from the OAS Charter and the American Convention on Human Rights. The Inter-American Commission has a mandate to promote respect for human rights in the region and acts as a consultative body to the OAS in this matter. The Commission is composed of seven independent members who are elected in an individual capacity by the OAS General Assembly and who do not represent their countries of origin or residence.