doc. 21 rev.
6 April 2001
Original:  English/Spanish




A.          The Context of the Present Report


1.          With the signing of the Accord for a Firm and Lasting Peace in December of 1996, the Government of President Alvaro Arzú and the Unidad Revolucionaria Nacional Guatemalteco (URNG) ended the 36-year civil war.  The accords provide the framework for beginning to address the causes and consequences of that conflict, and a roadmap for the reforms necessary to construct a system based on respect for human rights, democratic participation and the rule of law.[1]  Such reforms are essential if the  peace is to be truly “firm and lasting.” Upon assuming office in January of 2000, President Alfonso Portillo embraced the accords as the path toward the future that Guatemalans have set for themselves to achieve a just and inclusive society, and declared them to be State policy for his administration.


2.          This path toward the future through the resolution of the causes and consequences of the conflict gives priority to such concerns as, among others: (1) the creation of an independent judiciary that is perceived to be fair and effective; (2) the development of a National Civil Police that generates the respect of the people; (3) the redefinition of the role of the armed forces to pertain to protection against external threat; (4) the recognition of the just aspirations of the indigenous population; (5) the pursuit of relations between women and men free from discrimination and violence based on gender; (6) the achievement of a society that protects the interests of its children; and, (7) the progressive realization of economic, social and cultural rights through concrete advances to enable all Guatemalans to aspire to a life of dignity with equal opportunity.  The Commission wishes to emphasize that these priorities reflect basic principles and values of the regional human rights system, and in particular, of the American Convention on Human Rights.


          3.          A key aspect of the accords, identified as a critical failure of the past and a priority challenge for the present and the future, is the requirement that justice be done and be seen to be done.  The State acknowledges that the systems for public security and the administration of justice are gravely deficient.  Among the problems identified by the State itself are abusive and arbitrary action by the police forces; the lack of institutional capacity to investigate and prosecute crime, especially when committed by State agents; and serious deficiencies in due process and the administration of justice.[2]


          4.          In its observations on the draft report, the State indicated that addressing the problems of the country through the accords “has required government efforts to reach social consensus as well as the implementation of institutional reforms to permit compliance with the commitments….”*  It further indicated that “[t]hese have been necessary due to the institutional weakness of the State in the face of the traditional economic and military powers that have dominated the political scene during almost two centuries of independent life.  The most difficult reforms to implement relate to or affect interests of these two powers in fact.”


5.          As indicated in the opening section of this report, the Commission is deeply concerned about the deepening contradictions between the expression of State policy and its implementation in fact.  While President Portillo has repeatedly signaled that his administration shall adhere to the peace accords as State policy, MINUGUA reported that the first semester of 2000 was characterized by the stagnation of the process of implementing those accords.[3]  Guatemala is no longer in the initial stage of transition from the era of the conflict; rather, it has reached a point in the process of reform in which certain systemic problems must be decisively and definitively addressed.  The interrelated deficiencies in the administration of justice and the resulting situation of impunity for human rights violations constitute one such serious systemic problem.  In order for the consolidation of the rule of law to move forward (ensuring social stability and a propitious climate for development), the rule in cases of human rights violations must be the effective investigation, prosecution and punishment of those responsible.


6.          In its observations on the draft report, the State indicated that “the change of governmental administration signified the restructuring of the institutional framework created by the Peace Accords, both for the Government as well as for civil society, thereby requiring the recalendarization of” commitments not complied with, a recalendarization effectuated “in consultation with the Ministers of the Cabinet so as to enable the commitments to be complied with fully.”  The State also emphasized that “many of the Accords that have not been complied with are in the process of being implemented, and are long-term in scope, dealing, for example, with the problems of national coverage in schooling, health, social security, rural development, the problem of land and the theme of taxes, among others.”  The Commission takes note of the will of the State to fully comply with the recalendarized commitments, an obligation of fundamental importance, and looks forward to receiving updated information on advances in this regard in its process of following-up on the present report.


          7.          Finally, in this section that deals with the context of the present report, the Commission wishes to emphasize its serious concern with respect to recent reports that refer to incidents that could destabilize the constitutional democratic order in Guatemala.  Resolution CP/RES. 784 (1266/01) of February 28, 2001, issued by the Permanent Council of the OAS, expresses the Council’s concern in the face of information received, reaffirms the fundamental principles of the regional system in favor of representative democracy, and resolves: to support the constitutional Government of the Republic of Guatemala and the institutions of the rule of law; repudiate any type of act of the nature indicated; and exhort “all public institutions to ratify their constitutional commitment to defend the legitimacy and effective exercise of the rule of law.”[4]  Further, the Commission has taken note of the serious concern expressed by members of the international community, including those that have closely accompanied the peace process in the country, in relation to “the increase in the wave of intimidation and attacks against human rights activists, those involved in the justice system, witnesses, journalists and political leaders” -- attacks that “impede the full realization of activities undertaken in favor of justice, the struggle against impunity and the strengthening of the social fabric” within the framework of the construction of peace and democracy in Guatemala.[5]


8.          As the Commission has repeatedly emphasized, the “[p]rotection of human rights in the context of democracy implies the existence of institutional checks on the acts of the various branches of government, and the supremacy of the law.”[6]  The right to seek protection freely and effectively before independent and impartial  judicial authorities is a specific and indispensable manifestation of this principle; consequently, the present report concentrates in important part on the inextricable link between the protection of fundamental rights and the right to receive judicial protection and guarantees.  The Commission condemns actions that tend to weaken or distort the rule of law in Guatemala, supports and encourages the state and non-state sectors working in favor of the strengthening of democracy and its institutions, and will follow the evolution of this situation with special attention. 


B.          Institutional Organization and  Human Rights Protection


9.          As a Party to the American Convention, the State of Guatemala has undertaken, pursuant to Article 1(1), to respect and ensure the rights set forth therein with respect to all persons subject to its jurisdiction.  To that end, Article 2 requires the State to adopt the legislative and other measures necessary to give effect to those rights where they are not already fully protected at the national level.  This section provides an overview of selected constitutional provisions and institutional mechanisms in place at the national level to guarantee the rights of the population.  These and other legal provisions and mechanisms are referred to in greater detail in the chapters that follow.


10.          With respect to the constitutional regime, note must also be made of the commitment to constitutional reform set forth in the peace accords.  Pursuant to the State’s undertaking to pursue such reform, a package of modifications was approved by the Congress and presented for the approval or rejection of the population in a referendum held on May 16, 1999.  As is discussed in more detail in chapters X and XI, concerning political rights and the rights of the indigenous population, respectively, the result of the referendum was the rejection of the reforms.  The referendum process demonstrated, among other things, a lack of follow-through on the part of the State and other political actors to provide the public with information about the reforms for which these same sectors had manifested support. 


11.          While there are some areas, such as the redefinition of the respective roles of the police and military in providing security, that may require reform at the constitutional level, other objectives may, and in some cases have already been implemented through the adoption of other legislative, policy or administrative measures.  As the State indicated in its observations to the draft report, in certain cases, the pertinent institutions are in the process of identifying “the legislative and administrative mechanisms for implementing some of the commitments raised in the reforms, and that are also recognized by the Commission.” 


1.                 Constitutional Guarantees


          12.          The Political Constitution of the Republic of Guatemala, adopted in 1985, provides that the country is a “free, independent and sovereign” State, “organized to guarantee to its inhabitants their rights and liberties.”  The system of government is republican, democratic and representative; sovereignty resides in the people, who delegate its exercise to the legislative, executive and judicial branches.


13.          Title I defines the ultimate aims of the State.  Article 1 provides that the State is organized to protect the individual and the family, with its principal aim the achievement of the common good.  Article 2 provides that it is the duty of the State to guarantee “life, liberty, justice, security, peace and integral development” to the people of the Republic. 


14.          Title II addresses human rights.  Chapter I, Articles 3 through 46, sets forth the human rights deemed to inhere in the individual.  These include the rights to life, personal security, liberty, equality, due process, and a series of other basic civil and political rights.  Chapter II, Articles 47 through 134, recognizes social rights, and includes sections on family, culture, indigenous communities, education, universities, sports, health, social assistance and security, work and the economic and social regime.  Chapter III, Articles 135 through 137, covers additional civil and political duties and rights pertaining exclusively to Guatemalan citizens, concerning, inter alia, the duty of the individual to guard and defend the country and the Constitution, and to vote and participate in the political life of the nation.  Particular note must be made of the hierarchy accorded to international human rights obligations in the Constitution.  Article 46 establishes the general principle that, in the sphere of human rights, treaties and conventions ratified by Guatemala prevail over internal law. 


          15.          The principal legal measures for the immediate defense of individual rights and freedoms in relation to the exercise of public power are the remedies set forth in the Law of Amparo, Habeas Corpus [Exhibición Personal] and Constitutionality.  As noted in Article 1, this law seeks to ensure “adequate protection of human rights and the effective functioning of the guarantees and protections of the constitutional order.”  A writ of habeas corpus may be filed without formalities, by any person before any court or judge, through a simple procedure. 


The Constitution and the Suspension of Guarantees


16.          Chapter IV of the Constitution covers permissible limitations to constitutional rights during states of exception.  According to Article 138, certain rights may be limited in the case of an invasion, a grave disturbance of the peace, activities against the security of the State or public calamity.  The provisions that may be limited concern freedom of action, the conditions under which a person may be detained, the requirement that the interrogation of a detainee be done by a judicial authority within 24 hours with the stipulation that extrajudicial interrogations lack probative value, freedom of movement, freedom to meet and protest, freedom of expression, the right to bear arms, and the right of State workers to strike.


          17.          On November 2, 1998, via Decree 1-98, the Government declared a state of public calamity due to the effects of Hurricane Mitch, which included the suspension of the constitutional provisions guaranteeing freedom of action and movement.  Reports indicate that the decree was then placed before the Congress, which amended it with a decree that eliminated the suppression of freedom of action.  However, that Congressional decree was not published.  Rather, on November 13, 1998, the Government issued Decree 2-98, which modified Decree 1-98 by replacing the suspension of freedom of action with the suspension of the guarantee concerning the legality of detention.  That guarantee provides that no one may be arrested or imprisoned absent cause and a judicial order, except in the case of a flagrant offense, and that any person detained must be placed at the disposition of a competent judicial authority within 6 hours.


          18.          Following this measure, MINUGUA and other sources expressed concern that the State had not indicated why the exigencies of the situation justified the suspension of guarantees concerning the right to liberty.[7]  The Mission pointed out, in particular, that concerns about looting in the wake of the hurricane could have been dealt with through the exception provided for in the Constitution permitting warrant-less arrests in the case of a flagrant offense.[8] 


19.          Given the importance of the right to liberty in relation to the protection of other rights, a point discussed in chapter VII, infra, this was a valid concern.  In this regard, the American Convention sets forth criteria in Article 27 that apply to any suspension of its guarantees.  Most pertinently, the situation at issue must threaten the “independence or security” of the State concerned, and any derogation must be limited to “the extent and … period of time strictly required by the exigencies of the situation.”  Certain rights may never be suspended, and these are set forth in Article 27 as well.  Any State applying a measure of derogation must immediately notify the other States Parties to the Convention, through the Secretary General of the OAS, as to the provision(s) affected, the reasons, and the date for termination of the measure.  This procedure, prescribed to safeguard the efficacy of the Convention’s guarantees, was not followed in this case.  The Commission urges the State to ensure that any potential application of the provisions of Article 27 be as exceptional and restrictive as the object and purpose of this Article require, and that it fulfills its notification obligation. 


2.          Institutional Mechanisms


20.          This section reviews the principal institutional mechanisms through which the State implements its obligations under the American Convention.  One of the overarching commitments of the peace accords is the strengthening of institutions and mechanisms for the protection of human rights, and it is within this context that the present analysis is provided. 


21.          In addition to the traditional institutions of government reviewed below, it must be noted that a number of specialized State Secretariats and social assistance funds play a direct role in the implementation of the peace accords and the protection of human rights.  These include, to cite just a few examples, the Secretariat of the Peace (SEPAZ), the National Fund for Peace (FONAPAZ), the Guatemalan Indigenous Fund, and the Funds for Housing and Social Investment.  The Commission met with the chiefs of SEPAZ and FONAPAZ during its on-site visit.  These and other such entities will be referred to in the corresponding sections of this report. 


          22.          Further, one of the most crucial advances achieved through the process of elaborating and implementing the accords was the creation of new spaces for political dialogue and the engagement of civil society in the formulation of public policy. Under the terms of the Framework Agreement for the Resumption of the Negotiating Process, the Assembly of Civil Society was established in 1994 under the leadership of Monsignor Quezada Toruño to formalize the process for considering the views of a wide range of social sectors, many of which had been informally involved since the Oslo meeting in 1990.  This was followed by the establishment, pursuant to the terms of the accords themselves, of a diverse array of commissions for implementation comprised of representatives of the State and civil society.  For example, in accordance with the terms of the Accord on the Identity and Rights of Indigenous Peoples, the Commissions on Officializing Indigenous Languages, Sacred Places, Educational Reform, Reform and Participation and Rights Relative to Land were established.  In this regard, in its observations on the draft report, the State emphasized that:


there exists a space in which some actors of civil society and the indigenous peoples can express the observations they consider pertinent with respect to distinct topics concerning the national reality.  This has not, however, implied that they have been able to have a significant influence in the formulation, execution and evaluation of public policy.  It is only now, in the year 2000, that some of these spaces are producing results, such as those exemplified in the proposals to reform the law of Urban and Rural Developments Councils, the Municipal Code, and the draft law to register title information, as well as the implementation process for educational reform.


          23.          Each accord has its own mechanisms for participation in the implementation process, and these mechanisms also play an important role in advancing the promotion and protection of basic rights.  In its observations, the State made further reference to the Commissions for the Strengthening of Justice, the Penitentiary System, the Reform of the Electoral Law and Political Parties, and Technical Support to the Congress, as well as to the Technical Commission for the Resettlement of Uprooted Populations, the Consultative Commission for Educational Reform, the Advisory Council on Security, and the Joint Working Group for the Preparation of a Draft Law of the Civil Service.


24.          It is precisely the pursuit of participatory mechanisms for the design and implementation of public policy that spurs the consolidation of democracy.  The important work of some of these entities, such as the Commission on the Strengthening of the Administration of Justice, to cite one example, is referred to in pertinent sections of this report.  These forums must be supported through the allocation of the human and material resources necessary for them to function effectively.  As the official verifier of the implementation process, MINUGUA has indicated that many of these commissions, for example those established under the Indigenous Agreement, require more sustained attention from the State, both in terms of participation as well as funding.


a.          The Executive


          25.          The Executive Branch is headed by the President of the Republic, who serves for four years and may not be reelected.  The Constitution establishes certain grounds for ineligibility, prohibiting the candidacy of caudillos or leaders of a coup d’état or revolution, and members of the army.[9]  The President and Vice President are elected jointly by the vote of the absolute majority.


26.          The President acts with his or her Ministers, is General Commander of the Armed Forces, represents the nation and is charged with safeguarding the interests of the entire population.[10]  Various Ministries play important roles in the sphere of human rights.  These include the Ministries of Foreign Affairs, responsible for executing foreign policy, with which the Commission maintains constant relations in the processing of matters subject to its jurisdiction; Interior, responsible, inter alia, for the administration of the police forces; and Defense, responsible for the armed forces. 


          27.          Upon taking office on January 14, 2000, President Portillo stated that his administration would be based on five pillars, the first of which was the consolidation of democracy and national reconciliation, taking the peace accords as the point of departure.  These pillars include policies oriented to reduce social, ethnic and gender inequalities, and to confront impunity.[11]  He also indicated that he would be pursuing a “pact of governability” to continue the agenda of the peace accords, and seek the engagement of the other branches of Government and civil society in the development and execution of a national agenda.  This pact focuses on (1) security, justice, demilitarization and human rights; (2) descentralization, rural development and the environment; (3) education; (4) citizen participation and political reform; (5) integral human development; and, (6) the fiscal pact.[12] 


The Presidential Coordinating Commission for Executive Policy in Human Rights Matters (“COPREDEH”)


          28.          This Commission, established by Governmental Accord in 1991, is responsible to the President, and comprised of a representative of the President, and representatives of the Ministers of Foreign Relations, Interior and National Defense, as well as of the Attorney General of the Nation.  It is tasked with coordinating action to implement executive policy in this area, initiating investigations through the appropriate authorities, monitoring investigations into human rights violations, promoting international cooperation and assistance, establishing links and cooperation with international human rights bodies, and cooperation with the Judiciary and the Office of the Ombudsman for Human Rights.  The Presidency of COPREDEH is also represented in other instances, such as the Cabinet for Citizen Security and Human Rights, the National Commission for Follow-up and Support for the Strengthening of Justice, the Joint Commission for Reform and Participation of the Accord on the Identity and Rights of Indigenous peoples, the Commission on Humanitarian Law, and the Project toward a Security Policy for Democracy.


29.          The requests that the Inter-American Commission directs to the Ministry of Foreign Affairs for information relative to cases and other matters are channeled by the Ministry to COPREDEH for response.  In this regard, COPREDEH tracks the status of individual cases in the domestic system, provides general information, and plays a central role in facilitating requests from the Commission for precautionary measures and coordinating the effectuation of orders issued by the Inter-American Court in relation to individual cases and provisional measures.  In 1997, and again over the last year, COPREDEH has played a vital role in negotiations aimed at resolving individual cases through the mechanism of friendly settlement, and has facilitated the recognition by the Executive of State responsibility in a series of cases.  These important developments will be discussed further below.


b.          The Legislature


          30.          As provided in Article 157, the legislative power resides in the Congress of the Republic, which is unicameral and composed of 113 deputies elected by the people from national and district lists through a system of proportional representation.  Constituencies correspond to the administrative division of the country into 22 departments.  Members serve for four years and may be reelected.  Military personnel in active service may not stand for this position.


31.          Among its functions, the Congress acts to decree, modify or derogate laws, approves the national budget, declares taxes, may amnesty political crimes and related common crimes, and approves treaties and other international agreements prior to ratification.[13]  The Congress is authorized to present draft laws for consideration in accordance with the legal provisions that regulate presentation and voting.  In a notable positive development, in 1999 the Congress opened its first regional office, located in Quetzaltenango.  The objective of the office is to provide closer contact between Congress and the people, and to support civic education.  Currently, in accordance with information provided by the State, such offices have been established as well in the departments of Huehuetenango, Escuintla, Alta Verapaz, Quiché and Jutiapa.


32.          The Congress has a number of commissions that play an influential role in the consideration of legislation concerning human rights, including the Human Rights Commission, the Commission on Women, the Minor and the Family, and those on Indigenous Communities, and Peace.  The Inter-American Commission met with members of each during its on-site visit.  The Human Rights Commission of the Congress was created through the same decree that established the position of the Human Rights Ombudsman.  That Commission, composed of one member of each political party represented in the Congress, is tasked, among other things, with presenting a list of candidates for Ombudsman, acting as liaison between the latter and the Congress, and deciding on the Ombudsman’s dismissal.  It may also recommend legislative and other measures in favor of human rights.


c.          The Judiciary


          33.          The principle of an independent judiciary is established in Article 203 of the Constitution, in Article 57 of the Law of the Judiciary, and in Article 7 of the Code of Oral Criminal Procedure.  The judiciary is composed of a Supreme Court, appellate courts, courts of first instance and sentencing, courts of peace, and courts of special jurisdiction, such as juvenile and military courts.  The Court of Constitutionality was created pursuant to the Constitution of 1985, and is independent of the other organs of the State. 


34.          The administration of justice, and the challenges to be met in assuring available and effective justice, are, as noted, a central point of focus of this report, and are subject to extensive analysis in chapter IV, infra.  As discussed below, there have been some significant advances, such as the entry into force of the Law of the Judicial Career earlier this year.  Systemic problems remain, however, and must be resolved.  While the judiciary is mandated to ensure the effective protection of basic rights and freedoms at the national level, the acknowledged situation of impunity for human rights violations subverts that role and the rule of law generally.  The State acknowledges that the population has lost faith in the judicial system, and that what is required is concrete action to recuperate credibility.[14]


d.          The Office of the Ombudsman for Human Rights


35.          The figure of the Ombudsman for Human Rights of Guatemala was established in the Constitution of 1985.  Also known as the “Magistrate of Conscience,” the Ombudsman is commissioned by the Congress of the Republic, and exercises a Constitutional mandate to protect and defend human rights.  The Office has particular importance by virtue of its autonomy and identity as a national institution with offices throughout the country.  Through these offices, the Ombudsman receives thousands of complaints of alleged violations of basic rights per year.  It investigates those that meet the requirements for processing, and may issue public or private recommendations to state functionaries to change conduct found incompatible with basic guarantees.  It is also authorized to promote judicial or administrative actions in particular cases.  In addition to its complaints and mediation procedures, the Office plays an important role in human rights education and training.  The Ombudsman provides special attention to priority issues through its Defenders of the Rights of the Child; the Woman; Disabled Persons and the Elderly; Uprooted Persons and Migrants; Due Process; and the Prisoner; as well as its Committee to provide consensus in the establishment of an Office of the Indigenous Defender.


36.          In 1999, the Ombudsman received 16,754 complaints, up from the 11,892 received the previous year.[15]  Many of these didn’t meet the requirements to be processed or were dealt with through the mediation functions of the Office.  1,016 were processed as case files.  Among those referring to the violation of individual rights, the majority concerned the right to security, and in particular, abuse of authority.  The Ombudsman noted a increasing number of allegations against the National Civilian Police in this regard.[16]  With respect to economic and social rights, he highlighted the rights to education and health, as well as to work and access to basic services.[17]  Among the other activities the Ombudsman reported for 1999 were verifying the electoral processes, mediating various lynching cases with positive results, encouraging the establishment of mechanisms to comply with the recommendations of the Historical Clarification Commission, and training the civilian and military security forces in the area of human rights.[18]  Reference is made to the important work of this Office where pertinent throughout this report.


37.          The Ombudsman has expressed great concern over the level of funding allocated to his Office.  He reported in 1999 that, while the work of the Office had increased substantially, recent budgets had remained constant or represented a decrease.[19]  In October of 2000, he met with President Portillo to indicate the need for amplified funding, noting that the allocation contemplated for 2001 represented a significant reduction in real terms, and would result in closing auxiliary offices and decreasing services.[20]  In its observations on the draft report, the State observed that:


pursuant to technical criteria concerning resources, and in order to avoid an increase in the fiscal deficit, there had been a budget cut covering the whole of the public administration.  However, the Office of the Human Rights Ombudsman was not affected by these dispositions, and its budget was increased from Q 24 million (US $ 3.1 million) approved in 1999 for the year 2000, to Q 30 million in the budget approved for 2001 (a 25% increase).  It must nonetheless be noted that this is the first time the institution benefited from a substantial increase in its resources.


The Commission values this necessary increase in the allocation of resources as a reflection of the recognized importance of the mandate of this Office.


e.          The Supreme Electoral Tribunal       


38.          The Supreme Electoral Tribunal (“TSE”), established in 1983 as part of the legal regime to effectuate the return to democracy, is the maximum authority in the sphere of the electoral process, and is charged with, inter alia, convoking and organizing the electoral processes, declaring the validity of the vote, and awarding office.  It also proposes legislative initiatives and oversees the enforcement of legislation concerning the political participation of the citizenry, elections and the registration and activities of political parties; resolves questions concerning the registration, penalties and cancellation for political organizations; and appoints and oversees local electoral boards. 


39.          The TSE is independent, and composed of five magistrates and five alternates, elected by the Congress with a two-thirds majority from a slate of 30 candidates proposed by a Nominating Committee provided for in the Electoral Law.  The magistrates must meet the requirements set for magistrates of the Supreme Court of Justice, and hold the same rights and immunities.  They serve for six-year terms and may be reelected.  The TSE plays a fundamental role in ensuring the credibility of electoral processes, and is generally enjoys the respect and confidence of the public.  Its role is discussed in further detail in chapter IX of this report concerning political rights.


f.       The National Civil Police, the Army and the Pending Redefinition of their Respective Roles


          40.          The question of citizen security is a central preoccupation for the citizenry as well as the State.  There is a strong perception within the population of vulnerability to crime and violence, which obstructs the full exercise of basic rights and hinders the consolidation of the rule of law.  The Agreement on the Strengthening of Civilian Power called for the creation of a new National Civil Police, with a clearer mandate and stronger capacity to enforce the law and provide internal security.  While some important advances have been realized in reconfiguring the police, a number of systemic problems remain.  President Portillo and other authorities have indicated that, while there is political will to confront the problem, the technical capacity and resources available remain insufficient.[21]


41.          Pursuant to the terms of that Agreement, the police forces were restructured into one National Civil Police, with great effort invested into improving recruitment, selection, training and deployment criteria.  The Agreement contemplated a reformed and professionalized police service, with a strengthened criminal investigation capacity, increased material resources, and at least 20,000 members deployed by the close of 1999.  Since the end of 1996, the State has passed new legislation, raised salaries, retrained members of the previous National Police and Treasury Guard, recruited and trained new members, and begun purchasing new equipment.[22]


42.          As of mid-2000, just over 16,000 National Civil Police agents were deployed in 307 of 331 municipalities.[23]  Of these, just under two-thirds were new members, and just over one-third had been “recycled” from previously existing forces.[24]  In tracking compliance with the commitment to incorporate more women and members of the indigenous population, respectively, MINUGUA reported that 10% of that total were women, primarily in administrative positions, and that only just over 1000 spoke an indigenous language.[25]  The Mission indicated that police units still lacked critical infrastructure and equipment, and reported that administrative management was in crisis in terms of certain organizational questions, such as buying gasoline and repairing vehicles.[26] 


43.          As of the Commission’s on-site visit, early reports about the new National Civil Police indicated initial advances in addressing corruption and inefficiency, as well as a more positive reception on the part of the public.  However, as is discussed in chapter IV, infra, more recent reports have given rise to concern, as allegations of violations of fundamental rights by members of the National Civil Police have increased.[27]  Strong challenges remain with respect to deficiencies in recruitment, in terms of the rapid incorporation of much of the old forces; selection, which does not include sufficient screening; training, which remains rapid and necessarily superficial; and discipline, which suffers from the lack of an effective mechanism for oversight.[28]  Notwithstanding efforts to strengthen the Office of Professional Responsibility of the National Civil Police, it remains extremely weak in terms of mandate, procedures and resources. 


          44.          In its observations on the draft report, the State indicated that “the conditions of the post-conflict context and rise in the rate of crime are not the most adequate for pursuing police reform.”  However, it indicated, “the end and objectives for which the new National Civil Police was created are not being abandoned.”  “Accordingly, initial deficiencies in training are being corrected, there has been greater strictness in the selection and incorporation of members of the former National Police, the criteria of the Evaluation Board have been modified to better reflect a multi-ethnic character and the issue of gender, and further, the number of members of the Office of Professional Responsibility has been doubled.”


          45.          A further cause for concern is the adoption of Governmental Accord 202-2000, which provides that, in order to protect the integrity of criminal processes and investigators, the identity of a new group of anti-kidnapping agents shall be kept anonymous for at least ten years.  The Commission is currently collecting more information about this measure, and will monitor its use with great concern as it relates to the protection of the right to due process.  As the Commission has explained in various contexts, judicial systems that allow the use of “secret” or “faceless” prosecutors, judges or witnesses “do not provide adequate due process guarantees for criminal defendants.”[29]  In the case of investigators who may eventually act as witnesses, for example, the accused cannot carry out an effective cross-examination if he or she lacks sufficient information about their background or motivation, and doesn’t know how they obtained their information about the facts in question.[30]


          46.          The Agreement on the Strengthening of Civilian Power specifically defines the mission of the armed forces “as that of defending Guatemala’s sovereignty and territorial integrity; they shall have no other functions assigned to them, and their participation in other fields shall be limited to cooperative activities.”[31]  Accordingly, the Agreement called for, inter alia, reforms to the Constitution, the adoption of a new military doctrine, and a restructuring of the forces. 


          47.          Compliance with the Agreement to date has included a reduction in the size of the forces by one-third, the dissolution of the Ambulatory Military Police and the Civil Self-Defense Patrols (“PAC’s”), and the closing of a number of military installations.  While demilitarization has been particularly slow in the area of the Ixíl triangle of El Quiché and the Petén, in a notable advance during the first semester of 2000, a number of military installations in the Ixíl area and other zones not involved in the conflict were deactivated, and the Maya Task Force was dismantled.[32]  Action in the Petén remains pending.[33]  Other pending commitments include the reform of the constitutional provisions concerning the role of the security forces, and the adoption of a new military doctrine.[34]  Additionally, while the military budget had been reduced during previous periods, MINUGUA expressed strong concern that the most recent allocation surpassed the target set by the Agreement.  It also reported with concern that, during the previous administration, money from the budget of the Fund for Peace (FONAPAZ) had been utilized to purchase military equipment.[35]


48.          Further, the Agreement required that the role of military intelligence be restricted to conform to the newly defined military mandate, with its resources limited accordingly.  Consequently, it called for a Civilian Intelligence and Information Analysis Department under the Minister of the Interior to combat crime, and a Strategic Analysis Secretariat, purely civilian in nature, to report to the President in relation to any danger or threat to the State.  These two new civilian intelligence bodies were to work with military intelligence with “scrupulous” respect for the separation of their respective mandates. 


49.          As of the preparation of the draft version of this report, the Department of Civil Intelligence and Analysis of Information had been created, pursuant to the issuance of Governmental Accord 462-2000 in October of 2000.  Among its functions, the Department was to gather, process and analyze information relevant to combating organized and common crime, and protecting internal security.  The procedure for establishing the Department and its terms of reference was questioned by a number of sectors of civil society.[36]  MINUGUA, for its part, expressed that the entity should be established by means of a law, with corresponding Congressional oversight.  Such oversight, it noted, is of vital importance with respect to any intelligence activities.[37]  In accordance with the information provided by the State in response to the draft report, following these developments and the reaction that this Governmental Accord generated on the part of different governmental and non-governmental instances, it was derogated by decision of the President of the Republic through Governmental Accord 816-2000.  The State indicated that:


in its place, the competent organs are in the process of formulating a proposal for a law to create a civil intelligence headquarters supervised by the Legislature, thus following the recommendation made by the Honorable Commission concerning this theme.  At the same time, this will provide space to civil society to participate in the discussion of this matter.


The Commission values the opening of this space for dialogue, and this recognition of the importance of legislative supervision in this area, and hopes to receive information in the near future concerning the specific measures adopted.


50.          In the case of the second institution, the Secretariat of Strategic Analysis,  MINUGUA had indicated concern for the fact that its membership did not respect the civil character contemplated for the entity in the Accord, given that more than half of the personnel were members of the Army, many in leadership positions.[38]  In more positive terms, however, MINUGUA reported more recently that with the change of authorities the strictly civilian character of the institutions had advanced a great deal, and indicated that it would continue with its verification attentive to the maintenance of this character.  In its observations on the draft report, the State referred to the importance of the restructuring process initiated in January of 2000 with the purpose of “(re)converting the Secretariat of Strategic Analysis into a professionalized entity, with functions of a strictly civil nature.”


          51.          The Agreement on the Strengthening of Civilian Power defines “protection against threats to the public order and internal security” as the responsibility of the National Civil Police, and “protection against external armed threats” as the responsibility of the army.[39]  While the redefinition of the roles of these institutions is a core commitment of the accords, the facts on the ground demonstrate the ongoing intermingling of these forces in the area of internal security.  There are three situations that are particularly emblematic of the lack of any significant redefinition of roles. 


52.          The first is the use of the Army in civilian law enforcement activities.  Given the urgent public demand to combat crime and violence, the State has deployed the armed forces in anti-crime activities over the last several years.  In April of 1997, soldiers began participating in joint patrols with the police in areas of Guatemala City.  While this was characterized as a temporary measure to apply during the deployment of the National Civil Police, it has become more rather than less entrenched as that deployment has progressed.[40]  In June of 2000, the Congress approved the Law of Support to the Civil Security Forces, authorizing military participation in anti-crime activities throughout the country.  While characterized as a temporary measure, the law provides no date for its termination.  These activities reportedly involve at least 10,000 members of the Army.[41] 


53.          While fully recognizing the gravity of the effects of crime on the population, and the right and duty of the State to take measures against it, the Commission has consistently expressed concern about the use of forces trained for combat in activities that require training in civilian law enforcement.[42]  As the IACHR has previously indicated, “The proper objective of the armed forces in a democratic society is to assure the security and defense of the country,” and the concept of national security must not be confused with that of public security, which pertains to the police.[43]  MINUGUA, for its part, has indicated that the participation of the Army in security tasks that properly pertain to the National Civil Police “implies a grave setback in the process of demilitarization.”[44]  Various social sectors have expressed their demand that these functions be carried out by the civil security forces.[45]  Representatives of indigenous communities have pointed out that there remains a strong fear of and lack of confidence in the military in the areas most affected by the conflict.[46]


54.          Due to the continuing overlap in the functions of the National Civil Police and the Army, neither entity is able to consolidate and move forward in its objective of professionalization.  This overlap means that resources allocated to the Army for its legitimate function of the defense of national territory are instead being utilized to support its massive involvement in fighting crime.  Rather than strengthening the National Civil Police, the participation of the Army further weakens efforts toward reform, and deepens the perception of the citizenry that the civil security forces are incapable of fulfilling their mandate. 


55.          The second situation concerns the Estado Mayor Presidencial (“EMP”), the military entity assigned to provide security for the president, vice president and their families.  In accordance with the Agreement, the EMP was to be dissolved and replaced with a civilian security entity.  It will be recalled that the EMP had long been accused of notorious human rights violations.  As of October of 2000, reports indicated that the Secretariat for Administrative Matters and Security, a civilian entity, was being established, and that agents of the EMP would be directly recycled into it.[47]  This “recycling” has been roundly criticized by different actors of civil society as contravening the objective of demilitarizing this function.


56.          The third situation concerns the participation of the military in criminal investigation activities.  As is discussed further in chapter IV, concerning the administration of justice, reports indicate that members of the military, particularly military intelligence, have participated in criminal investigations.  This is incompatible with the attribution of investigative authority to the National Civil Police, under the direction of the Public Prosecutor.  Further, such participation lacks any transparency or oversight.  Moreover, as is also discussed in chapter IV, the State itself acknowledges that the military has obstructed investigations and justice in cases where one of its members was involved.[48]


          g.          The Commitment of the State to Combat the Existence of Illegal Groups


          57.          Given the context of the armed conflict, one of the crucial commitments of the Comprehensive Agreement on Human Rights is that the State must combat any manifestation of illegal security forces or clandestine security machinery, and provide further control over the possession and use of firearms.  While these issues are addressed in further detail in chapter V, concerning the right to life, the Commission finds it opportune in this overview of mechanisms for the protection of rights to manifest its profound concern in the face of consistent reports concerning the reorganization of groups of former military commissioners and PAC members, and the existence of clandestine structures linked to the State, or linked to economic or other interests but acting with the participation or tolerance of State agents.[49]  With respect to the former PAC’s, MINUGUA and other sources have reported on the continuation or renewal of links between former members and local armed forces.  The Mission has verified that these groups provoke disorder in various zones of the country, and have participated in acts of intimidation and aggression including lynchings.[50] 


58.          As is indicated in chapter V, the existence of such groups and the lack of an effective response thereto on the part of the State poses a serious risk to the advances of the peace process, as well as to stability and the rule of law.[51]  The lack of control over such groups, as well as over the many unregistered private security companies, coupled with easy access to illegal and unregistered weapons, creates a situation where affected local populations perceive themselves to be – and are -- under threat.  Further, as is analyzed in the section on the administration of justice, certain so-called “parallel powers” continue to interfere in that sphere.  In fact, President Portillo recognized the need to dismantle such powers in his inauguration speech.


3.          Obligations under International Law


59.          Within the United Nations system,           the applicable sources of international obligation in the sphere of human rights include the Universal Declaration of Human Rights, International Covenant on Economic, Social and Cultural Rights (ICESCR), International Covenant on Civil and Political Rights (ICCPR), Convention on the Elimination of All Forms of Racial Discrimination, Convention on the Elimination of All Forms of Discrimination against Women, Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, and the Convention on the Rights of the Child.  Reports indicate that Guatemala recently ratified the Optional Protocol to the ICCPR concerning the competence of the Human Rights Committee of the UN to examine and decide upon individual complaints of violations under this instrument, and also recognized the competence of the Committee against Torture and the Committee against Racial Discrimination to receive and decide upon individual complaints.  These constitute an important means for enhancing the protection of human rights, and this expression of commitment on the part of the State is highly constructive. 


60.          Guatemala is also Party to a number of conventions of the International Labor Organization, including Conventions 138 and 169.  Finally, while the State signed the Statute providing for the creation of an international criminal court, it has yet to take action to ratify it.


          61.          The specific obligations of the State in relation to the inter-American system of protection are detailed in chapter II, which also deals with recent initiatives of Guatemala in favor of the consolidation of the protection of human rights in the country.


C.          The Role of the International Community


          1.        The United Nations and MINUGUA


62.          The international community has provided special support to the peace process since the early stages of its negotiation.  The United Nations, in particular, has played a crucial role since the parties first requested it to act as an observer, pursuant to the 1990 Oslo accord, and then requested it to act as moderator, pursuant to the 1994 Framework Accord for the Renewal of the Negotiations Process.  It was the latter accord that also created the Assembly of Civil Society to formalize the participation of civil society, and that provided for the formation of a Group of Friends of the peace process (Colombia, Mexico, Norway, Spain, the United States and Venezuela), to lend diplomatic support. 


63.          The United Nations Verification Mission in Guatemala was established pursuant to the terms of the 1994 Comprehensive Agreement on Human Rights, which provided that the UN would verify the observance of human rights by both parties to the conflict prior to a definitive cease-fire.  Since late 1994, MINUGUA has been verifying compliance with the terms of the Comprehensive Agreement and the human rights aspects of the Agreement on Identity and Rights of Indigenous Peoples, through its headquarters in Guatemala City and offices stationed throughout the country.  As of mid-2000, it had issued eleven reports on its findings.  The Mission has also played an important role in mediating conflicts at the local level, and in strengthening government institutions responsible for the protection of human rights, such as the judiciary, the police and the Office of the Ombudsman for Human Rights through diverse projects and programs of training and technical assistance. 


64.          Pursuant to the amplification of its mandate following the signing of the peace, since 1997 the Mission has also reported on the verification of all of the peace accords, and, as of mid-2000, had issued five reports detailing its findings.  These reports have provided a crucial mechanism for highlighting advances and challenges in the process of compliance, thereby encouraging further progress.  In presenting his plans for governance, President Portillo indicated his desire to count on the continued support of MINUGUA to the country. 


          65.          The Inter-American Commission has benefited from excellent collaboration with MINUGUA, both in meetings to exchange insights during its on-site visit and other occasions, as well as through exchanges of information and publications.  The Commission recognizes and values the positive climate of collaboration between the Mission, the State and the other actors of the national and international communities in the defense of human rights.


          2.          The OAS and Other International Actors


66.          In addition to the work of this Commission, the OAS has played a significant role in supporting the consolidation of peace and democracy through its “Special Program of Support to Guatemala.”[52]  With the strong support of international state and institutional donors, the OAS has carried out a number of programs through its Unit for the Promotion of Democracy.  These include OEA/PROPAZ, which has sought to promote the peaceful resolution of conflicts, especially land conflicts.  The Unit has provided extensive technical support to the Supreme Electoral Tribunal,[53] and has provided assistance to the Congress, through its Program of Juridical Support.  Further, it has carried out activities within its program “Democratic Values and Political Management” designed to train political leaders in areas relating to democratic participation through the political system.


67.          In a program with special importance due to its critical impact on the security of the inhabitants of the areas most affected by the conflict, the Unit -- in close collaboration with the Corps of Volunteer Firefighters, Corps of Engineers of the Army, former URNG combatants and international supervisors of the Inter-American Defense Board, under the National Plan for Demining -- has participated in coordinating the removal of mines planted during that era.  In January of 2000, work in the area of Ixcán, El Quiché was completed, and the first demined lands were delivered by the local authorities to the population.  Work continues in the Ixil triangle of El Quiché.[54]


          68.          Guatemala has also benefited from the support and assistance of other entities within the UN system, such as the United Nations Development Program, UNICEF, UNIFEM and other offices, as well as a wide range of international actors including institutions such as the World Bank and Inter-American Development Bank, and a significant number of countries including those of the consultative group.  The technical assistance, loans, grants and donations provided by these and other actors have manifested in concrete terms the hope of the international community for a truly firm and lasting peace in Guatemala.


D.      The Past as Prologue: Clarification of Past Violations within the Agenda
          of Reconciliation


69.          This first year of the new millennium is a time for looking toward and preparing for the future.  Guatemalans have decided that their future must be one of peace, participatory democracy and justice, and have taken decisive action to break free of the 36-year conflict in favor of a firm and lasting peace.  The pursuit of that future, however, requires that Guatemalan society look back and reflect on how it arrived at that turning point.  The Agreement on the Establishment of the Commission to Clarify Past Human Rights Violations and Acts of Violence that have Caused the Guatemalan Population to Suffer expressed the recognition that “the people of Guatemala have the right to know the whole truth concerning these events, clarification of which will help avoid a repetition of these sad and painful events and strengthen the process of democratization in Guatemala.” 


          70.          Powerful initiatives have spoken the sorrowful truths of the violations of the conflict; among others, the Commission for Historical Clarification, in its report Memory of Silence, and the Recovery of Historical Memory Project of the Human Rights Office of the Archdiocese of Guatemala, in its report Guatemala: Never Again!.  These have been joined by the initiatives of the victims and their families to seek the judicial investigation of specific violations, and prosecution and punishment of those responsible, and related efforts to locate and exhume the bodies of those who were disappeared or massacred to provide a final burial with full dignity.


71.          The work of the CEH has special significance as the accounting prepared pursuant to the peace accords, under the auspices of the UN.  That Commission was established to clarify with “objectivity, equity and impartiality” the human rights violations and acts of violence of the conflict.  It was not established to judge those violations, and did not individualize responsibility.  Rather, it placed the atrocities and brutalities on record, and attempted to explain why the violations of human rights and dignity took place. 


72.          Having faced the astonishing challenge of collecting testimony and data, and analyzing the history, violations and violence of almost four decades in just under one year, the CEH released its comprehensive and authoritative report in February of 1999.  It provides vital clarification, both in detailing the nature of the pattern and practices of the massacres, disappearances, arbitrary executions, rape and denial of justice  perpetrated, and in attributing institutional responsibility for those violations.  The report indicates that 93% of the violations of the conflict were attributable to State and paramilitary actors, and 3% to the guerilla.  It details the scorched earth policy of the worst years of violence, and clarifies that specific indigenous communities were subjected to acts of genocide.  The recommendations issued by the CEH are oriented toward the preservation of the memory of the victims; ensuring compensation for those who suffered; fostering a culture of mutual respect and observance of human rights; strengthening the democratic process; supporting peace and harmony; and establishing a body responsible for monitoring the fulfillment of the recommendations. 


73.          The work of the REMHI project has special resonance as the opportunity created for the victims to give their testimony in their own words.  The project was carried out over several years by people in the communities, working directly with those most brutalized by the conflict, with few resources except the will to speak the truth.  As the Coordinator of the Human Rights Office of the Archdiocese, Auxiliary Bishop of Guatemala Juan José Gerardi, indicated in his presentation of the report:


As a church, we collectively and responsibly took on the task of breaking the silence that thousands of war victims have kept for years.  We opened up the possibility for them to speak and have their say, to tell their stories of suffering and pain, so they might feel liberated from the burden that has weighed them down for so many years.[55]


74.          The testimonies are of those who survived, about what they witnessed.  For example, one survivor, then a child, recalled:


I was playing there when I saw the soldiers coming up.  As they came, my mom told me to run.  …I fled; I knew they had already started killing.  I ran alone among the coffee bushes, and my mother did not follow me.  At about four o’clock in the afternoon, I went back to the village.  They had already burned the house and my family.  No one was left.[56]


75.          As Bishop Gerardi further reflected in his speech, “[t]o open ourselves to truth and to face our personal and collective reality are not options that can be accepted or rejected.  They are indispensable requirements for all people and societies that seek to humanize themselves and to be free.”[57]  In view of the State’s responsibility for systematic human rights violations, the REMHI Project issued a series of recommendations for compensation, assistance programs for victims, moral reparations, and the restitution of truth and the collective memory of the victims.


          76.          Efforts to confront the legacy of the conflict through judicial channels have included, first, the presentation of claims before the courts of Guatemala, for example, that concerning the massacre of Las Dos Erres.  Second, the Fundación Rigoberta Menchú Tum presented claims before the Audiencia Nacional of Spain concerning crimes by high-ranking officials alleged to give rise to universal jurisdiction.[58]  Although this claim was not admitted for processing, claims concerning violations during the conflict have been filed before the courts of other countries.  Third, the IACHR itself is processing a number of cases that arose during the conflict.  For example, it recently published two reports concerning a series of 46 extrajudicial executions and 5 disappearances, respectively.  As indicated in chapter II, infra, the State has expressed its commitment to fully comply with the recommendations issued. 


77.          A number of organizations are carrying out exhumations to gather evidence and to ensure a burial with dignity for the victims.  The Forensic Anthropology Foundation of Guatemala [EAFG], working in collboration with the Association of Families of the Detained-Disappeared of Guatemala (FAMDEGUA), the Mutual Support Group (GAM) and the National Coordinator of Guatemalan Widows (CONAVIGUA), had carried out 96 exhumation procedures as of mid-2000, resulting in the recovery of over 1000 sets of human remains.[59]  The ODHA had carried out 33 as of mid-2000,[60] and the Center for Human Rights Legal Action (CALDH) and Reconciliation for Justice Association have been carrying out a series of exhumations in relation to a legal case concerning a series of massacres during the execution of the scorched earth policy. 


78.          As the CEH indicated, “[t]o a great extent, the future of Guatemala depends on the responses of the State and society to the tragedies that nearly all Guatemalans have experienced personally.”[61]  Without prejudice to the other recommendations flowing from the CEH and REMHI reports, the following have special systemic importance: the creation of the Foundation for Peace and Harmony to implement the range of CEH recommendations; the establishment of a national program of reparations for those who suffered; the creation of a national commission to search for and establish the fate of the disappeared; the establishment of a commission to examine the conduct of officials of the army and of the security forces during the conflict; and the dissemination of the work of the REMHI and CEH.  In this regard, in response to the draft report the State reported that:


[i]n the context of compliance with the recommendations of the report of the CEH, the Secretariat of Peace is developing the Pilot Program for Reparation, that is carrying out 52 projects in 96 communities of 17 Municipalities in 4 Departments.  The Pilot Program is considered to serve as an experience prior to and as a precursor for the Nation Plan for Reparation.


The Commission encourages the State in this stage toward compliance with the recommendations of the CEH, and hopes to receive detailed information concerning this and other measures adopted toward this crucial end.


79.          The response of the State to the violations of the past has demonstrated both remarkable advances, and equally dismaying set backs.  The first response of the State to these initiatives was its public acknowledgement of responsibility for grave violations of human rights, and apology to the Guatemalan people.  This was an act of tremendous symbolic importance which paves the way for the implementation of measures of reparation and accountability which must follow. 


80.          The cover page of the Report of the CEH declares: “Let the history we lived be taught in the schools, so that it is never forgotten, so our children may know it.”[62]  The State has taken initial steps to support the development and distribution of textbooks to teach the history of the conflict.[63]  As of mid-2000, reports indicated that measures were underway in the Ministry of Education to begin including material from the REMHI and CEH reports in school curricula in 2001.[64]  These are important advances.


81.          Decisive action remains pending in a number of critical areas.  President Portillo has promised to support the creation of the Foundation for Peace and Harmony, the development of a national reparations program, the establishment of an exhumation program, the creation of a commission to search for the disappeared, and the implementation of the other recommendations of the CEH.  The establishment of these mechanisms has been subject to extended delay.  Consequently, measures reported by the State in its response to the draft report concerning the development of a pilot program on reparations and the initiation of programs to search for the disappeared and carry out exhumations through COPREDEH are of special importance.  In this regard, it continues to be especially critical that steps be taken to define and establish the foundation referred to above in order to implement these recommendations.


82.          In some respects, the situation most emblematic of the limits of the process of clarification is the tragic murder of Monsignor Gerardi days after the presentation of the REMHI report, and its impunity to date.  These facts have sent a clear message of intimidation to those who seek to bring the dark past to light.  This message has only been intensified by the escalating threats and attacks against human rights defenders in the interval since that killing.  The killing, the lack of clarification and the failure of the State to respond to these threats link the violations of the past with the present.


83.          Clarification is an essential element in the process of reconciliation.  However, in the case of fundamental violations such as massacres, disappearances, rape, torture and genocide, such truth-telling must be accompanied by the acknowledgement of wrongdoing, the prosecution and punishment of those responsible, and reparation for the victims or families.  As the reiterated jurisprudence of the system indicates, victims and their families have the right to a judicial investigation by a criminal court to determine who was responsible for the violations suffered and to ensure their punishment.[65]  Both those directly affected and society as a whole have the right to know the full truth about what happened,[66] and in the case of disappearances, in particular, this includes establishing the fate of the victim.  The further right “of victims or their families to receive adequate compensation is both a recognition of the State's responsibility for the acts committed by its personnel and an expression of respect for the human being."[67] 


Conclusions and Recommendations


84.          The State of Guatemala has committed itself to protect and promote human rights through the provisions of its Constitution, the regional and international obligations it has undertaken, and through the Comprehensive Agreement on Human Rights.  Within this framework, the State has articulated promising commitments in favor of the protection of human rights.  The present report examines areas where these commitments may require further development, and focuses in particular on the central challenge of bringing them to fruition.  The foregoing review of the principal legal and institutional mechanisms charged with protecting human rights provides a framework for the chapters which follow.  Given the crucial role these mechanisms play, the Commission has formulated several basic recommendations that follow to assist the State in its efforts to strengthen the domestic framework for the implementation of its obligations.


85.          As the Constitution of Guatemala establishes, the ultimate aim of the State is the protection of “the person and the family,” and its definitive duty to ensure the “life, liberty, justice, security, peace and integral development” for each inhabitant.[68]  The task of “preserving and consolidating peace” and constructing a system of “social justice as one of the cornerstones of national unity and solidarity” depends on the commitment of the State and capacity of its mechanisms to respect and ensure the fundamental rights of the population.[69]  Addressing the roots of decades of conflict which arose from a system of exclusion will not be accomplished by formal acts, but through systemic changes aimed at creating the participatory democracy that is the essential pre-condition for the effective enjoyment and observance of human rights.  To this end, the Commission recommends that the State:


1.       Further fortify the resources and support provided to the public entities charged with protecting and promoting human rights and investigating human rights abuses, most particularly the Office of the Human Rights Ombudsman, and the institutions charged with the administration of justice.


2.       Further amplify the dissemination of the peace accords throughout the country, including in the respective indigenous languages, in writing and by radio.


3.       Take decisive action to separate the functions of the Army and National Civil Police, in conformity with the roles assigned in the peace accords, and to further strengthen the capacity of the latter to meet the demands of protecting the security of its citizenry.


4.       Adopt the measures necessary to ensure that both the military and civilian intelligence services are subject to due congressional oversight.


5.       Further amplify the dissemination of the Report of the Commission for Historical Clarification, especially the conclusions and recommendations, including through programs designed to teach national history in the schools.


6.       Adopt concrete measures to fully effectuate the recommendations of the Commission for Historical Clarification, including first and foremost, the establishment of the Foundation for Peace and Harmony which will be responsible for implementing those recommendations.


7.       Amplify opportunities for State officials to receive information and training concerning the obligations of State within the inter-American human rights system, and under international human rights law generally.



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[1] The Accord for a Firm and Lasting Peace was signed and entered into force on December 29, 1996, UN Doc. A/51/796S/1997/114, Feb. 7, 1997, Annex II.  Ten other agreements form an integral part of that final agreement: the Comprehensive Agreement on Human Rights, done at Mexico City on March 19, 1994, UN Doc. A/48/928S/1994/448, of April 19, 1994, Annex 1; the Agreement on Resettlement of the Population Groups Uprooted by the Armed Conflict, done at Oslo, June 17, 1994, UN Doc. A/48/954S/1994/751, July 1, 1994, Annex 1; the Agreement on the Establishment of the Commission to Clarify Past Human Rights Violations, done at Oslo, June 23, 1994, UN Doc. A/48/954S/1994/751, July 1, 1994, Annex II; the Agreement on Identity and Rights of Indigenous Peoples, done at Mexico City, March 31, 1995, UN Doc. A/49/882S/1995/256, April 10, 1995, Annex; the Agreement on Social and Economic Aspects and Agrarian Situation, done at Mexico City, May 6, 1996, UN Doc. A/50/956, June 6, 1996, Annex; the Agreement on the Strengthening of Civilian Power and on the Role of the Armed Forces in a Democratic Society, done at Mexico City, Sept. 19, 1996, UN Doc. A/51/410S/1996853, Oct. 16, 1996, Annex; the Agreement on a Definitive Ceasefire, done at Oslo, Dec. 4, 1996, UN Doc. S/1995/1045, Dec. 17, 1996, Annex; the Agreement on Constitutional Reforms and the Electoral Regime, done at Stockholm, Dec. 7, 1996, UN Doc.A/51/776S/1997/51, Jan. 20, 1997, Annex I; the Agreement on the Basis for the Legal Integration of the URNG, done at Madrid, Dec. 12, 1996, UN Doc. A/51/776S/1997/51, Jan. 20, 1997, Annex II; Agreement on the Implementation, Compliance and Verification Timetable for the Peace Agreements, done at Guatemala City, Dec. 29, 1996, UN Doc. A/51/796S/1997/114, Feb. 7, 1997, Annex I.  The foregoing accords formally entered into force upon the signing of the firm and lasting peace in 1996, with the exception of that concerning human rights, which entered into force when signed in 1994.  More detailed reference to these accords is made in the pertinent sections of the present report.

[2] See Presentation of the State of Guatemala, delivered by COPREDEH, before the Commission on March 3, 2000.

* Please note that the material quoted from this presentation has been freely translated from the original Spanish into English by the Commission for the purposes of the English version of this report.

[3] “While underlining that the National Civil Police is principally responsible for human rights violations and indicating its concern with respect to this fact, the United Nations Verification Mission in Guatemala, Minugua, emphasized the current situation of ‘stagnation’ of the peace process.”  Miguel González and Pedro Pop, “Minugua: Preocupa violaciones a los derechos humanos,” Prensa Libre, Sept. 1, 2000.  See generally, MINUGUA, “Declaration of MINUGUA on the Human Rights Situation,” Guatemala de la Asunción, Aug. 11, 2000 (recording with deep concern the existence of serious situations which, if not rapidly and effectively dealt with by the public authorities, would be an important setback in the State’s compliance with its duty to protect fundamental rights…;” Fifth report of the Secretary General of the United Nations on the verification of the Peace Accords of Guatemala, A/55/175, Sept. 2000 (emphasizing, for example in para. 4, the pending commitments “whose lack of definition affects both the progress of the process as well as governability;” MINUGUA, Eleventh report on human rights of the United Nations Verification Mission in Guatemala (“Eleventh Report”), A/55/174, Sept. 2000.

[4] In the resolution, the Permanent Council referred specifically to the commitment of the regional system to permanently watch over the stability of democratic institutions, as expressed in the Charter of the OAS, resolutions AG/RES. 1080 (XXI-0/91 “Representative Democracy,” the Declaration of Santiago “Commitment to Democracy and the Renewal of the Inter-American System,” the Declaration of Managua, and resolution AG/RES. 1724 (XXX-0/00) “Strengthening Democracy: Special Fund.”

[5] Paid advertisement published in the principal newspapers, Feb. 28, 2001, by the Embassies of Germany, Austria, Belgium, Spain, France, Great Britain, Northern Ireland, Italy, the Low Countries, Sweden, Canada, United States, Japan, Norway and Switzerland, and the following UN agencies: UNHCR, CCI,  Population Fund, IOM, PAHO/WHO, UNDP, UNESCO, UNICEF, UNIFEM and UNOPS.

[6] Second Report on the Situation of Human Rights in Peru, OEA/Ser.L/V/II.106, Doc. 59 rev., 2 June 2000, “Final Reflections,” para. 3.

[7] MINUGUA, “Consideraciones de la Misión respecto a la suspensión de garantías constitucionales por efectos del Hurican Mitch,” 25 Nov. 1998.

[8] Id.

[9] On this point, see the case of José Efraín Rios Montt, who presided over the de facto government from 1982-83.  See Report Nº 30/93, Case 10.804, Guatemala, Oct. 12, 1993, in Annual Report of the IACHR 1993, OEA/Ser.L/V/II.85, doc. 9 rev., Feb. 11, 1994.

[10] Art. 182, Political Constitution of the Republic of Guatemala.

[11] “Discurso de Toma de Posesión del Presidente de Guatemala,” Lic. Alfonso Portillo, 14 Jan. 2000, Guatemala.

[12] See, Lic. Alfonso Portillo, Constitutional President of the Republic of Guatemala, “Pacto de Gobernabilidad: discurso de presentación,” 24 Jan. 2000, Guatemala de la Asunción.

[13] Art. 171, Constitution.

[14] Sonia Pérez Díaz, “Hugo Maul Figueroa, “Se ha perdido la fe en la justicia,” Prensa Libre, 9 Oct. 2000 (transcribing an interview with the President-elect of the Supreme Court of Justice, days before he took office).

[15] Human Rights Ombudsman, Informe Circunstanciado 1999 (2000) [“Ombudsman’s Report”], p. 19.  In its observations to the draft report, the State indicated that “the increase in denunciations does not necessarily imply a rise in the number of violations, but may well be interpreted as a higher level of confidence in the figure of the Human Rights Ombudsman, as well as a greater awareness of the internal control mechanisms with respect to such rights.”

[16] Id., pp. 19-20.

[17] Id., p. 21.

[18] See, id.

[19] Id., pp. 19, 37-38.

[20] See Pavel Arellano, “Procuraduría de los Derechos Humanos pide recursos,” Prensa Libre, 10 Oct. 2000.

[21] “La inseguridad, el problema número 1 del Gobierno, dice Presidente Alfonso Portillo,” news summary, citing Siglo Vientiuno, Prensa Libre, 12 July 2000.

[22] See generally Hugh Byrne, William Stanley, Rachel Garst, Rescuing Police Reform: A Challenge for the New Guatemalan Government (Washington Office on Latin America 2000).

[23] See id.; see MINUGUA, Fifth Report of the Secretary General of the United Nations on the Verification of the Guatemalan Peace Accords (“Fifth Report”), A/55/175, 26 July 2000, para. 66.

[24] MINUGUA, Fifth Report, para. 67.

[25] Id.

[26] Id., p. 66.

[27] See generally, MINUGUA, Eleventh Report.  The Office of Professional Responsibility has also reported an increase in denunciations.

[28] See Byrne, Stanley, Garst, supra.

[29] IACHR, Third Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.102, Doc. 9 rev. 1, 26 Feb. 1999, ch. V, para. 121.

[30] See id., para. 123.

[31] Agreement, supra, section C.

[32] MINUGUA, Fifth Report, paras. 8, 76.

[33] “Modernización del Ejército va a paso lento,” Prensa Libre, 1 July 2000; “Ejército sólo ha cerrado nueve destacamentos en Guatemala: MINUGUA,” AFP, 2 June 1999.

[34] In its observations on the draft report, the State indicated in relation to the adoption of a new military doctrine that “a space for discussion  had been created under the auspices of the Latin American Faculty for Social Sciences (FLACSO) with the participation of members of the military and representative sectors of civil society, with the hope that this process would conclude with legal reforms and administrative measures sufficiently agreed upon for the reorientation of the military doctrine.”  Further, “the Army presented a draft before the Congress of the Republic concerning the new military doctrine, leaving the document open to opinion.”

[35] MINUGUA, Fifth Report, para. 75.

[36] Olga López Ovando, “Fundación Myrna Mack demanda hacer cambios a DICAI,” Prensa Libre, 6 Oct. 2000.

[37] Pavel Arellano, “MINUGUA solicita consenso,” Prensa Libre, 10 Oct. 2000 (quoting Juan Pablo Corlazzoli, the Assistant Chief of Mission).

[38] MINUGUA, Fifth Report, para. 72.

[39] Agreement, supra, section IV.A.

[40] Byrne, Stanley, Garst, supra, at ch. 4.

[41] See “Congreso aprueba ley temporal de apoyo militar a seguridad interna,” Prensa Libre, 8  June 2000.  Other reports suggested that up to 15,000 soldiers would be involved.  It should be noted that the National Civil Police was comprised at this time of approximately 16,000 members.

[42] See Report on the Situation of Human Rights in Ecuador, OEA/Ser.L/V/II.96, Doc. 10 rev. 1, April 24, 1997, ch. II.A.4, citing Report on the Situation of Human Rights in Colombia, OEA/Ser.L/V/II.84, Doc. 39, rev., Oct. 14, 1993, ch. III.F.

[43] Report on the Situation of Human Rights in Mexico, OEA/Ser.L/V/II.1000, Doc. 7 rev. 1, Sept. 24, 1998, para. 400.

[44] MINUGUA, Eleventh Report.

[45] “Sectores sociales adversan patrullaje del ejército,” La Hora, 19 de junio de 2000.

[46] Id.

[47] See, Pavel Arellano, “Estado Mayor Presidencial será reciclado,” Prensa Libre, 5 Oct. 2000.

[48] See “Paz y derechos humanos: Guatemala reconoce responsabilidad Institucional in violaciones a DD.HH.,” Página 3, 5 Apr. 2000 (reporting on the acknowledgement of such interference by State representatives before the UN Human Rights Commission).

[49] See, e.g., MINUGUA, Eleventh Report, paras. 73-87; Tenth Report, 73-77; Ninth Report, paras. 67-75; Eighth Report, paras. 80-86.

[50] MINUGUA, Eleventh Report, para. 84.

[51] In its response to the draft report, the State argued that “notwithstanding the existing reports, the necessary elements do not exist to establish, in a precise manner, links between State agents and this class of groups,” or that public authorities encourage the creation of such groups.  However, the State also expressed its concern regarding “the possibility that private persons who belong to such groups may contribute to the destabilization of institutions, and [indicated] that a link between State agents and these groups, motivated by political, economic or other types of interests, would be highly troubling.”

[52] See generally “Informe del Secretario General al Consejo Permanente sobre el Programa Especial de Apoyo a Guatemala,” OEA/Ser.G, CP/doc. 3298/00, 28 abril 2000; see also, the more detailed information available through the web site of the Unit for the Promotion of Democracy, at www.upd.oas.org.

[53] This is briefly referenced in chapter X, infra, concerning political rights.

[54] See Informe del Secretario General, supra.

[55]Recovery of Historical Memory Project [REMHI], Guatemala, Never Again! (1988), Speech by Monsignor Juan Gerardi on the Occasion of the Presentation of the REMHI Report, Metropolitan Cathedral of Guatemala City, April 24, 1998.

[56] Id., testimony of REMHI case 10066 (massacre), Aldea Kajchijlaj, Chajul, Quiché, 1982.

[57] Id., Speech.

[58] “Justicia Universal por el genocidio en Guatemala,” Demanda presentada por la Premio Nobel de Paz Rigoberta Menchú Tum, ante la Audiencia Nacional de España el 2 de diciembre de 1999 (Fundación Rigoberta Menchú Tum 2000).

[59] See “La Fundación de Antropología Forense ha realizado 96 exhumaciones,” AC, 27 June 2000.

[60] See Alberto Ramírez Espada, “Fosas clandestinas,” Prensa Libre, 25 May 2000.

[61] Commission for Historical Clarification [CEH], Guatemala: Memory of Silence [“CEH Report”] (1999), prologue.

[62] Id., cover page.

[63] See Luisa F. Rodríguez, `Libro ‘Historia Sinóptica de Guatemala’ ira a las aulas,” Prensa Libre, 12 Dec. 1999.

[64] See Rodolfo Flores García, “Informes de CEH y REMHI llegarán a escuelas,” Siglo Veintiuno, 31 May 2000.

[65]            See, e.g., Reports 28/92 (Argentina) and 29/92 (Uruguay) in Annual Report of the IACHR 1992-93, OEA/Ser.L/V/II.83, doc. 14 corr. 1, March 12, 1993; Reports 39/00, 40/00 (Guatemala), para. 268, para. 98, respectively, in Annual Report of the IACHR 1999, OEA/Ser.L/V/II.106, Doc. 3 rev., 13 April 2000, Vol. II.

[66]            See, e.g., IACHR, Annual Report of the IACHR 1985-1986, OEA/Ser.L/V/II.68 doc. 8 rev. 1, September 26, 1986, "Areas in which steps need to be taken...," p. 193.

[67]            Report of the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, Mr. Bacre Waly Ndiaye, E/CN.4/1997/60, December 24, 1996, para. 47.

[68] Arts. 1, 2, Constitution.

[69] Preamble, Agreement on a Firm and Lasting Peace.