CHAPTER II

PUBLIC SECURITY AND SAFETY

A.        Introduction

89.              The State has the obligation to prevent and prosecute crime in the context of respect for human rights. During its stay in Guatemala, the Commission received valuable testimony on issues of public security and safety, and on the violence and crime that are severely undermining the rule of law.

90.              In recent years there have been constant violations of fundamental individual rights, resulting from the breakdown of law and order in the country,[108] as well as from acts of aggression, harassment and intimidation sponsored or tolerated by circles within government, or by structures parallel to the State. The homicide rate in Guatemala, at 69.98 deaths for every 100,000 inhabitants, is one of the highest in Latin America and the Caribbean.[109] Moreover, there is an alarming pattern of murders of street children committed by the State security forces or by private security services. On this point it must be noted that not all acts of violence in Guatemala are reported by their victims.[110]

91.              According to information received during the visit, 85% of murders are committed with firearms, and there has been an increase in such crimes since the Peace Agreements were signed. The Commission also wishes to call the Guatemalan government's attention to the failure to enforce the Weapons Control Act, and it urges the State to adopt effective plans to control and eradicate the illegal possession of weapons.[111] The authorities recognize that nine of every 10 weapons seized were not registered and that this figure has remained stable in recent years, while no countermeasures have been taken.[112] The Commission learned that the report of the Congressional Human Rights Commission on Creation of the General Directorate of Arms and Munitions Control is still pending, and urges the State to move ahead with this and other initiatives to control the situation.

92.              These levels of violence demonstrate the serious situation facing the country in terms of crime rates. The Commission notes that levels of violence have increased in the run-up to the general elections that will be held in November 2003. According to public information, since the beginning of the electoral process at least 21 persons associated with political and electoral affairs have been reported murdered.[113] Moreover, information has been received pointing to an increase in acts of intimidation, assassinations, threats, attacks on personal integrity and home invasions, directed against social and political leaders and against human rights defenders, justice workers and journalists, in the context of the Guatemalan elections.[114] Given the gravity of the situation, the Commission granted precautionary measures to protect the personal integrity of political activists in the Department of Chiquimula.

93.              The public safety situation is compromised by these figures, as it is by the lack of an efficient police force that respects human rights and that devotes itself to internal security and promoting rapprochement between the police and the citizenry. The Agreement on Strengthening the Civilian Power refers to the demilitarization of Guatemalan society, and improving internal security as a means of strengthening the democratic State. This implies reducing the influence and involvement of the Armed Forces in issues beyond their specific responsibility, i.e. questions of external security, and avoiding their interference in all matters of government. The Commission noted information from MINUGUA according to which:

The State and Guatemalan society are still far from fulfilling the provisions of the Peace Agreements. The general deterioration in the public safety situation and the institutions responsible for guaranteeing it, the persistent overruns and the lack of transparency in military spending, and the scant progress that has been made in creating a civilian intelligence service reflects the unsatisfactory progress in this area during the period [2002 and early 2003].[115]

94.              The Commission learned that the Advisory Council on Security was created by Governmental Agreement 48-2003, dated February 26, 2003, to study and submit strategies for dealing with the priority threats facing the country and to make recommendations to the President of the Republic. Given the alarming public safety situation in Guatemala, the Commission hopes that this Council will soon be in operation, and it looks forward to receiving the results of its work.

95.              In this chapter the IACHR examines some of the factors that have contributed to the sustained rise in violence, the government’s initiatives to address the situation, and the results, and offers some recommendations to help deal with the problem of law and order in Guatemala.

B.        The National Civil Police (PNC)

96.              The PNC was created in 1997 pursuant to the Peace Agreements, which called for creating a civilian police force for maintaining law and order. It is essential that the PNC carry out its functions properly in order to increase security and people's sense of safety, to improve relations between the police and the public, and to demilitarize internal security.

97.              The government reported that the PNC has about 20,553 police officers[116], or roughly one officer for every 2200 inhabitants. The Commission notes that these figures represent progress towards meeting the obligations under the Peace Agreements, but the number of police officers per capita still needs to be increased, particularly in the interior of the country. The Commission has received information[117] indicating that the PNC is now better equipped with vehicles, weapons, ammunition and communication equipment, but it notes the need to make further progress in this respect, and to improve the related infrastructure. The Commission urges the government to implement a policy of strategic and operational planning for maintaining law and order in Guatemala. On this point, the Commission was told that:

The civilian forces are very weak in terms of technical training, equipment and budget, and the process of transforming the PNC has suffered setbacks, particularly in the aspects of its budget, professional training, the police career, and police involvement in corruption, organized crime, drug trafficking and human rights violations.[118]

98.              Members of the PNC need to be provided with training in order to create a modern and efficient police force that will be respectful of fundamental human rights. According to information provided by the government, the capacity of the PNC has been strengthened, in line with the government's possibilities, and with international cooperation. For example, the Commission learned of a project in support of the PNC control units, conducted between September 2001 and the end of 2002, with financing from the Government of Sweden, designed to produce professional police officers who are respectful of human rights. Another example is the program in support of a national public safety policy that the European Union financed for four years (ending in early 2003).[119]

99.              In its observations on this report, the State listed the following actions taken by the Ministry of the Interior in order to guarantee public safety by strengthening the National Civil Police in the context of respect for human rights:

100.          With respect to logistics and operational tasks of the National Civil Police.  To this end, on November 3, 2003 a fleet of vehicles and motorcycles was restored to working order; the number of officers was increased to expand national coverage, and they were given an increase in travel allowances to help them perform their functions properly.  As well, training through the National Civil Police Academy has continued.  With respect to reforming the National Civil Police, Government Order of July 3, 2003 includes amendments to the present disciplinary regime, and the new regime entered into force on November 28, 2003.  As well, amendments to the National Civil Police Act have been introduced and are now before Congress.  In terms of improving the effectiveness of the National Civil Police through modernization, deconcentration and decentralization, the State reported that it has repaired the PNC communication system; it has created a web page with information and statistics on PNC activities, under a contract signed with the Guatemalan Telecommunications Company; five computer terminals have been installed in the departments for registering police records; and work on installing a computerized network between police stations has begun.

101.          The government indicated that, with approval of the expenditure budget for 2003, the police have been financially and technically strengthened to meet the demands for public protection. Nevertheless, the Commission received news that:

The National Civil Police Academy not only has structural and organizational problems and a lack of means, but it has been weakened by consecutive budget cutbacks that have had a decisive impact on the selection and training of new police officers, leading eventually to problems that have further undermined the institution, such as corruption and human rights violations. Although the budget for 2003 was increased, it is not enough to cover the operating needs of the Academy.[120]

102.          The Commission is deeply concerned over the possible consequences of reducing the budget for the PNC Academy, given its key role in training a police force that will be more democratic and more respectful of individual rights. The government reported that human rights training courses have been provided to 200 instructors and between 10,000 and 15,000 police officers, with the help of MINUGUA, and that a course on practical application of human rights has been conducted with help from the Danish Center.  The State also noted in its observations that, as of December 2003, the PNC Academy had graduated 1,461 agents who had been pursuing full-time courses.  There was a considerable improvement in the participation and inclusion of women in the Academy: 180 female officers graduated during 2003, including one Deputy Commissioner, 1 Officer II, 9 Deputy Inspectors, 9 Specialists, 3 Members of the Police Special Forces, 3 in the SIC, 3 in Bomb Dismantling, 126 in the Basic Course, and 25 in the Refresher Course that was conducted between July 14 and October 10, 2003.

103.          The Commission urges the government to give the police academy the resources and support it needs, recognizing that efforts to date have been important but insufficient to ensure continuity in the work of providing specialized training for police officers through the PNC Academy. 

104.          Subsequent to the IACHR visit, the Commission noted with concern that the PNC lacked the operational capacity for maintaining public order, as evidenced in the disturbances staged by sympathizers of the political party Frente Republicano Guatemalteco (FRG) on July 24 and 25, 2003. Hundreds of people were mobilized from the early hours of Thursday, July 24, from various parts of the country. With their faces concealed and wielding machetes and clubs, they took over the main streets of Guatemala City and took up position in front of the headquarters of the Guatemalan High Courts and the Centro Empresarial Building. According to a report by MINUGUA, at no time did the PNC forces make give any sign of attempting to control the steadily growing outrages, and they did not even have anti-riot gear.[121] The Commission noted that the level of violence unleashed by the demonstrators in different parts of the city, in open defiance of public security, together with the failure of the police to intervene, left Guatemalan society with a well-founded feeling of defenselessness. The IACHR considers that the State's failure to impose law and order constitutes a clear dereliction of its duty to protect the persons under its jurisdiction. In this respect, the IACHR welcomes the dismissal of the Director of the PNC as a result of the failure of the police to intervene and control these violent demonstrations.

105.          The Commission is also deeply concerned over the human rights violations committed by members of the PNC. These practices, which violate various rights protected by the American Convention and can invoke the international responsibility of the State, tend to exacerbate the gulf and the lack of trust between the police forces and the citizenry, and to undermine the democratic principles on the basis of which the PNC replaced the former National Police. With respect to violations of human rights by the police forces, MINUGUA has maintained that:

Since 2000, there has been negative trend with the PNC, which has become the main instigator of the most serious violations of priority human rights. Overall, the violations attributed to the PNC fall under two broad categories. The first has to do with the rights to life, to personal integrity and security, and to personal liberty; the second has to do with the right to due process, and in particular the right to a fair trial and the duty to investigate and punish.[122]

106.          Under the Guatemalan constitution, a person suspected of committing a crime can only be arrested in accordance with domestic legislation and international law, i.e. under the order and supervision of a judge, and for a limited time.[123] Yet in practice these requirements are not observed in many cases, including cases that involve minors, and those responsible for most of the arbitrary or illegal arrests are members of the PNC. Government efforts to train members of the PNC to avoid such behavior have not succeeded in eradicating this practice. The Commission has earlier expressed its concerned over the lack of a centralized registry of arrests and detentions in Guatemala, such as could be used for monitoring arrests, and over cases involving obstruction of justice through the alteration of police reports.[124] During the visit no information was received to indicate any improvements in this matter, and the Commission notes that both circumstances tend to encourage arbitrary or illegal arrests.

107.          According to information received, 44 percent of the violations of due process committed by the PNC involve obstruction of justice through the actions of a police officer, such as direct threats against witnesses, and alterations of information contained in the police reports.[125]

108.          The Commission also learned of recent events in which the police used excessive force and abused their authority.[126] The State can only authorize its agents to use force when that force is proportional, necessary, and in conformity with their legitimate duties. The Commission has established that:

In accordance with the international norms developed to govern the use of force by law enforcement officials in the performance of their duty, the use of force should be necessary and proportionate to the needs of the situation and the objective to be achieved[127]

109.          The Human Rights Ombudsman's Office informed the IACHR that between November 2001 and November 2002, 344 cases of violations of human rights related to the abuse of authority were opened.[128] The Commission also received information on the work of the Professional Responsibility Office (ORP) of the PNC with respect to the investigations that it is conducting into the behavior of PNC members in performance of their duties.[129] The Commission recognizes that the ORP functions well in some cases, but it also received reports of inefficiency, ineffectiveness and impropriety in its approach to other cases.[130] The Commission notes the need to strengthen the work of the ORP and to implement preventive policies to prevent these acts from recurring. The PNC should also have effective internal and external control mechanisms.[131]

110.          An especially critical issue in the field of security is the operation of the private security forces in Guatemala, where there are three private police officers for every public officer, and there are no mechanisms or laws to control their activity. The members of private security forces, moreover, stand accused of committing various violations of individual rights, which are made worse by the failure of the judiciary to investigate these events, and by the lack of government control over private security.[132] The lack of a legal registry of private police forces means that there is no State control over their activities, which are occasionally criminal, and this facilitates abuse. According to information provided by the government, the Federation of Private Enterprises issued a publication calling on private security firms to legalize their situation, giving them a period of six months to do so. It also reported that an office would be created within the Ministry of the Interior to take the lead on these issues, and that legislation to this effect was now in second reading before the Congress. The Commission has not received any new information on progress in implementing these initiatives.

111.          In its observations, the State indicated that the Ministry of the Interior, through the Legal Advisory Unit and the National Civil Police, has registered and licensed 13 private security companies, under the relevant legislation, Congressional Decree 73-70 on private police services, and that a further 40 authorizations were pending.  The State stressed that the problem of authorizing private security firms is a legislative rather than an administrative matter, since the existing law is out of date.  A proposed legislative reform was submitted to Congress in 2003 to allow these entities to be properly supervised and controlled.  Congress is currently examining that bill, the main provisions of which are to exert more effective control over the activities, logistics and training of private police officers, and to establish minimum requirements for them to operate in the country.

112.          The Commission also wishes to stress the need for the police forces to reflect the reality of Guatemalan society, and consequently all sectors of society should be duly represented within the PNC. This report will refer, in subsequent chapters, to the need to maintain a multiethnic and multicultural police force, and in particular to encourage the participation of members of indigenous peoples and of women in various State organizations.

113.          One of the Commission's key concerns with respect to public safety is the involvement of the Armed Forces in activities that should be reserved exclusively to the PNC. Because the Armed Forces lack proper training for the enforcement of law and order, the work of combating insecurity, crime and violence within the country, as stipulated in the Peace Agreements, must fall to a civilian police force that is efficient and respectful of human rights.

114.          The State has attempted to cloak the internal security interventions of the Armed Forces with an aura of legality, for example, through Legislative Decree 40-2000, the Law on Support for the Civilian Security Forces, which allows the Army to collaborate with civilian forces in combating crime. While the State ordered the dismissal of several military officers of the Ministry of the Interior in February 2000, it has frequently ordered the use of the Armed Forces to support the work of the PNC. For example, the IACHR has learned that there have been joint patrols and searches conducted by the police and the Army. The Commission also learned that the Ministry of Defense recognizes that the role of the Armed Forces is merely to support the PNC in cases where they do not have the means to fight better-prepared criminal organizations.[133] In any case, the distinction is not very clear in practice, and there are no indications that such interventions in issues of internal security have actually reduced the levels of crime in Guatemala. Indeed, in recent years several military officers have headed the Ministry of Interior, which is responsible for directing the work of the PNC. Therefore, the Commission considers it indispensable to eliminate the influence and participation of the Armed Forces in questions that lie beyond their duties.

115.          On this point, the State indicated in its observations on this report that, in accordance with the national constitution,[134] the Army is an institution charged with maintaining the independence, sovereignty and honor of Guatemala, the integrity of its territory, and its internal and external peace and security.  Consequently, the Guatemalan Army, conscious of its responsibility and its constitutional mission, is respectful of the domestic juridical order and is fully aware of the ordinary laws that attribute powers to the different entities of the State.

116.          With respect to involvement of the Armed Forces in issues of public safety, Amnesty International has reported indications that, on occasion, the Army has conducted such operations independently, and has gone as far as to order the district police chiefs to submit written reports on their activities to senior military officers.[135] On this point, MINUGUA reported on a joint antinarcotics operation on March 6, 2003, conducted in the Department of Zacapa by the Army, the Attorney General’s Office, the Narcotics Analysis and Information Service, and alleged agents of the PNC, in which three suspects were arrested, illegally interrogated and tortured by the Army.

117.          On a related matter, the State indicated that, as reported by MINUGUA, an antinarcotics operation was conducted in the Department of Zacapa, involving various State entities legally empowered to undertake such operations.  According to the information provided by the State, that operation resulted in the arrest of several persons, and the seizure of drugs, weapons and vehicles.  Those arrested were booked by officers of the Narcotics Analysis and Information Service of the National Civil Police and were formally brought before the justice of the peace of the municipality of Rio Hondo, Department of Zacapa.  On that occasion, the Guatemalan army provided aerial support and perimeter security to the Civil Security Forces in charge of the operation.

118.          In its observations, the State reported that it had succeeded in reducing the number of joint patrols by the Ministry of Interior and the Ministry of Defense, which are conducted only in extremely urgent cases.  The Commission considers that, in a democratic system it is essential to have a clear and precise separation between internal security, as the function of the police, and national security, as the function of the Armed Forces.[136] Influence over public safety is in fact only one aspect of the broad power that the Armed Forces wield over the government and Guatemalan society. The demilitarization begun with the signature of the Peace Agreements must be pursued, and civilian control, both by the executive and the legislature, over the activities of the Armed Forces must be strengthened. Strengthening the civilian power should be a priority goal of the Guatemalan government.

C.        The role of the Armed Forces

119.          When the Peace Agreements were signed, much thought was given to the militarization that was so deeply rooted in Guatemalan society, and the particular doctrine of national security[137] that prevailed during the armed conflict, as the starting point for revising the role of the Armed Forces. According to the new parameters for establishing a democratic society, the Armed Forces are responsible for national defense, guarding the country's frontiers, and protecting jurisdiction over its maritime, land and air space but they are no longer to exert internal or public control. The Historical Clarification Commission (CEH) recommended:

The Army must be subordinated to the civilian power, military conduct and fulfillment of the military's constitutional mandate must be adapted to respect human rights, discipline must be exercised within the law, the military must remain aloof from party politics, and its tasks must be limited to external security.[138]

120.          In November 2001, Governmental Agreement 456-2001 was promulgated, establishing dialogue between society and the Armed Forces, and a participatory process for designing the country's national defense policy. This "Intersectoral Roundtable for Dialogue on Defense Policy"[139] represented a project for democratic security. In its observations, the State reported that it convened the following sectors for these purposes: the public, representatives of indigenous peoples, political parties, universities, professionals, workers, campesinos, social communicators, human rights workers, academics, and persons invited in their individual capacity.  22 sessions were held: one formal session, 19 regular sessions, and two special sessions, in which there were 15 foreign speakers, 44 national speakers, and 21 moderators, who analyzed and discussed the general topic.  This work led to publication of the “National Defense White Paper of the Republic of Guatemala", which lays the basis for the design of a national defense policy that was presented by the President of the Republic to Guatemalan society and the international community on November 28, 2003.

121.          During its visit, the IACHR learned about the action plan of the Ministry of Defense, and the intention to adhere to human rights standards. This action plan has four themes: promotion and training for human rights, creating a Department of Human Rights, conducting humanitarian aid operations, and reforming military criminal justice.[140]

122.          The Commission received information about the courses on human rights and international humanitarian law that are being provided in the military training and professionalization centers, which have provided training to a total of 31,824 members of the Armed Forces between 1994 and 2002, including officers, specialists and soldiers.[141] The Commission urges the State to continue these courses in order to provide training for as many members of the Armed Forces as possible.

123.          The IACHR recognizes the benefits that could flow from creating a Department of Human Rights within the Ministry of Defense, No. 358-2003 of June 20, 2003, which is to analyze and confirm the appropriateness of laws, regulations and legislation on human rights, the promotion and enforcement of these fundamental rights inherent to the individual’s dignity, physical and mental integrity, as well as to improve living conditions for members of the Guatemalan army on active service. It notes that this initiative is still in its early stages, and that in any case it is not intended to remedy human rights violations committed in the past.  The Commission calls upon the State to institute to issue regulations for the functioning of this Department as quickly as possible and to ensure that it functions properly, and urges in the meantime that it encourage the use of other means for investigating complaints of human rights violations.

124.          The Commission notes that many people accused of human rights violations during the armed conflict are still part of the Armed Forces, in violation of the Peace Agreements. In fact, the personnel reductions affected primarily the rank and file, and not the senior personnel.[142] The Commission urges the State to take the necessary measures to restructure the Armed Forces so as to remove from their ranks those responsible for serious human rights violations, and to establish clear mechanisms for the promotion and dismissal of military officers.

125.          The Commission recognizes the usefulness of the humanitarian assistance performed by the Army in support of government institutions, nongovernmental organizations and the civilian population on various occasions,[143] but it stresses the need to ensure that interventions in the civilian arena are limited. The IACHR is concerned over possible participation by the Armed Forces in functions that exceed the mission conferred upon them by the Peace Agreements. On this point, MINUGUA has maintained that:

On the one hand, the State uses the military to perform functions that should be assigned to civilian departments, on the grounds that the latter lack operational capacity or presence in the interior. This serves to perpetuate the weakness of the State structures, hampering their consolidation and reinforcement. On the other hand, the Armed Forces derive benefit inasmuch as they are still interested in carrying out tasks that bring them closer to the population in order to accomplish military intelligence tasks.[144]

126.          The Commission received information that the Army prepares a “Periodic Report on Civilian Affairs", as part of its military intelligence work, which involves collecting social and demographic data, and information on political attitudes, economic activities, religious matters, and the news media.[145] On this point, the Commission reiterates that it is the civilian authorities who must fulfill intelligence tasks under the Peace Agreements.

127.          While the Commission received official information that the Armed Forces budget for 2003 was cut to Q850 million compared to Q1200 million for 2002, other sources report that the budget is slightly bigger.[146] In any case, the budget of the Ministry of Defense, consistent with the Peace Agreements, is supposed to be at most 0.66% of GDP, and it is much higher.[147] Regardless of the funds assigned to the Armed Forces, budgetary spending in practice exceeds that allocation.[148] The IACHR also notes with concern that the State allocates extraordinary budgetary items to the Army for activities beyond its basic function of national defense. Finally, the Commission received information on possible improper transfers to certain military units.[149] While both legal and illegal transfers declined in 2002 from the year before, they are still taking place.[150] In particular, the Commission notes with concern that levels of spending by the Armed Forces are similar to those of 1995, when its role still called for it to combat the armed conflict,[151] and that there is little transparency in public spending on national defense.

128.          The State reported on efforts made to modernize the military criminal justice system. Among other things, there is a proposed new military code that includes the crimes covered by the Geneva Conventions on international humanitarian law, and human rights standards covered by the national constitution and the international treaties ratified by Guatemala. As well, it calls for respect for the procedural guarantees and due process enshrined in the American Convention on Human Rights. Yet there are complaints about the margin of maneuver in applying military justice to issues that should be the preserve of civilian jurisdiction.[152] The draft Military Code was presented in October 2002: according to the information received the first reading of that code was approved by the Legislature,[153] and the opinion of the Congressional Human Rights Commission is still pending. The Commission notes that the results of this initiative can only be assessed once the new Military Code is approved and put into practice.

129.          During the on site visit, the government advised the Commission of its intention to dissolve the Presidential General Staff (EMP) on October 31, 2003, pursuant to the Peace Agreements.[154] Members of the EMP were accused of serious human rights violations during the armed conflict, and the courts found them guilty of participation in the murder of the anthropologist Myrna Mack and Bishop Juan Gerardi, making the EMP a symbol of repressive counterinsurgency structures. According to information received, the government demobilized 186 members of the EMP at the end of 2002, and another 107 members at the beginning of May, 2003.[155] Subsequently, October 29, 2003, in what he called publicly a historic act,[156] President Portillo announced that the EMP would be abolished as of October 31 of this year, with the dismissal of 564 staff, thereby complying with the time limits established by the government. By means of Decree 50-2003, the Guatemalan Congress confirmed the dissolution of the EMP and regulated the powers of the Administrative and Security Affairs Secretariat (SAAS), which will replace the EMP with 350 security staff. According to that decree, the SAAS is a thoroughly civilian body, responsible both for security and for providing administrative and logistical support to the President and Vice President of the Republic[157]. The Commission welcomes the dissolution of the EMP, as a major step forward in reestablishing peace and strengthening Guatemala’s democratic society.

130.          The Commission reiterates that the structure of the Armed Forces must be consistent with that of a democratic society. In this respect, the Commission received official information on the dismantling of 30% of military bases, yet information collected during the visit indicates that State structures, particularly military structures, continue to function on the basis of counterinsurgency concepts, which means that they continue to identify enemies within Guatemalan society, and this creates tensions and confrontation, in particular for the exercise of civil and political rights.[158] Moreover, the IACHR received information that military bases remain in certain regions where the military presence generates or promotes social confrontations and intimidation. These acts of harassment and confrontation are related to the resurgence of the Civil Self-defense Patrols which are acting in collaboration with, or under the acquiescence of, the Armed Forces, as the Commission will discuss at the end of this chapter. On this point,

The Ministry of National Defense has de-activated three military zones and 16 detachments since last year (2002); nevertheless, the Rabinal military detachment remains active without justification in the Department of Baja Verapaz, where its presence is causing polarization among sectors of local society.[159]

131.          The President of the Republic declared in September 2001 that a program of restructuring, modernization and professionalization of the Armed Forces would be launched, and that it would include transforming military installations that do not comply strictly with military functions into education, agricultural training and civil security centers.[160] In October 2003, President Portillo announced that the Army was being reduced by 12 percent more than called for in the Peace Agreements.[161] According to data provided by the State in its observations on this report, at the end of October 2003: the Guatemalan Army had placed in regular or early retirement 162 officers of all ranks, 782 specialists, and 700 soldiers from the payroll.  Today the Guatemalan Army numbers 27,214, representing a reduction of 41.97% in its complement prior to signature of the Peace Accords.  The Commission welcomes the State's effort to comply with this aspect of the Peace Accords, and will monitor the process of implementing the pending initiatives, in particular those relating to modernization and professionalization of the Army.

132.          In response to the IACHR's observations in this report with respect to public safety, the State pointed out that the Agreement on Strengthening the Civilian Power and the Function of the Army in a Democratic Society calls for establishment of a security agenda, which includes methods and mechanisms that the government must implement in order to guarantee public safety and the security of the State, which has been assumed as an institutional and a State commitment.  Consequently, the Ministry of the Interior created a high-level Commission for fulfillment of the Peace Accords in the area of public safety.  This Commission created a subcommission to review, adapt and update regulations governing the National Civil Police, consisting of representatives of the General Directorate of the National Civil Police, UNDP, IMASP, Madres Angustiadas [“Distressed Mothers”], German Cooperation, and the Ministry of the Interior.  That subcommission completed its work, with the following results as noted by the State: a proposed new disciplinary regime for the National Civil Police, sparked by indications of corruption and criminal activity among members of the police; authorization of the Disciplinary Tribunals; and immediate reform of the Internal Regime of the National Civil Police.  In December 2003, these proposals were submitted to the High-level Commission for study and approval.

D.        Lynchings

133.          Lynchings represent heinous acts of violence against individuals, whether they involve one or more victims and whether those victims perish or not as a result.[162] This social phenomenon is perpetrated not by ordinary criminals, nor on individual impulse, but by normal citizens who act as vigilante groups, or even entire communities that participate in lynchings. Victims are generally seized under suspicion of committing a crime, but they can also be taken from their homes or workplace. The victims, who are generally males, and to a lesser extent women and children,[163] are normally tortured before they are executed, in order to force them to reveal the names of their presumed accomplices, and they die after beatings, mutilation, stoning, shooting and being burned alive. An analysis of events suggests that planned lynchings are increasing.[164] According to MINUGUA,

Situations of historic origin, such as exclusion and the culture of violence inherited from the armed conflict, together with the inadequate response of State agencies, means that lynchings continue to go unpunished, and are increasingly coming to be accepted among certain sectors of the population. The characteristics of this phenomenon, and the lack of government action to deal with it, makes it a central source of human rights violations, and one of the clearest manifestations of the deteriorating human rights situation.[165]

134.          The State maintained before the IACHR that there were no recent lynchings, that the number has declined, and that this was a problem of justice and not of security, reflecting the lack of local justice. Nevertheless, according to information received, the phenomenon of lynchings that has been documented since 1996 still persists, and it is of great concern to the Commission. According to MINUGUA statistics, between 1996 and 2002 there were 482 lynchings recorded, with 943 victims, 240 of whom lost their lives.[166] The Commission also notes that the phenomenon of lynchings is a problem both for justice and for security, and that in any case it is the responsibility of the State to take the steps necessary so that the various State agencies will address and resolve it.

135.          Since this practice began, sectors of Guatemalan society have maintained that lynchings were an expression of customary indigenous law. On this point, the IACHR reiterates that lynchings are not based on indigenous law. Lynchings do not stem from indigenous culture, but are the product of years of violence and oppression experienced by indigenous peoples during the armed conflict.[167] Moreover, according to information received, the systematic denial of indigenous law, the destruction of traditional mechanisms for settling community disputes and creating community authorities, and the imposition of a different system of values has led certain sectors to resort to violence in order to restore traditional indigenous methods of dispute settlement. In this respect,

Lynchings are not an expression of indigenous law. Indigenous law is respectful of the value of life and uses mechanisms based on consensus, reparations, restitution and conciliation, which are the antithesis of any act of lynching.[168]

136.          The IACHR received information that the State has made efforts to build a stronger presence in the interior of the country, by instituting greater numbers of prosecutors, public defenders and courts of first instance, and to reinforce the human and physical resources of justice institutions in order to combat this phenomenon. Moreover, the Commission for Modernization of the Judiciary, the Ministry of Education and the National Civil Police, with the cooperation of MINUGUA, created the Lynching Prevention Program in 1999, which subsequently received support from other civil and State organizations.[169] In July 2002, the National Council against Lynchings was created and in late 2002 the Supreme Court issued a circular to justices of the peace, instructing them to take preventive measures.  In this respect, the State reported in its observations that the judicial authorities have trained 32,000 community leaders, in the course of 455 workshops.  It noted that between October 2002 and September 2003, 219 workshops were conducted, involving more than 10,000 leaders.

137.          The Commission received information that the number of lynchings in 2002 was higher than the year before, but the number of persons killed declined. This probably reflected the prevention efforts of the PNC. An analysis of individual cases shows that the ability of the PNC to deploy officers familiar with the local language and area made police intervention more effective.[170] Although the PNC and the Office of the Human Rights Ombudsman has intervened successfully in certain cases to prevent victims from being assassinated or from suffering more severely than they did, the government response has to date been glaringly deficient. In many cases the authorities took no steps to prevent or to respond effectively to violent acts.[171] In fact, those acts occurred for the most part in places where there was little or no presence of institutions for the administration of justice, or in places where those institutions enjoy no legitimacy.

138.          The Commission reminds the State of its duty to prevent crime and to settle disputes. This means that community members must be involved more thoroughly in implementing programs of this kind, which must not only be permanent but must also include follow-up and monitoring. The Commission urges the State to adopt a comprehensive policy for preventing and combating lynchings, since isolated policies have been unable to eradicate the practice. The State must provide a prompt, coordinated and interinstitutional response in places where lynchings are likely to be committed, and must not rely solely on intervention by the police, which in some cases may be inadequate. There must be a rapprochement between the State and the communities, and the government must have with a prevention policy, and the political will to enforce it. There must also be a better distribution of the budget allocated by the National Congress. As well, there must be collaboration between the municipal authorities, the traditional indigenous authorities, and the Human Rights Ombudsman for enforcing the policies created.[172] The Commission hopes to see positive and concrete results in the near future.

139.          The vast majority of cases of lynching go unpunished. The Commission received information to the effect that the impunity associated with lynchings is both de facto (reflecting the lack of resources for investigating them) and de jure (through legal mechanisms that place the victim in an unequal position vis-à-vis the criminal, and therefore fail to protect victims from acts of lynching).[173] Of the total of 346 lynchings recorded between 1997 and 2001, only 48 gave rise to judicial proceedings, and only a third of those resulted in convictions.[174] The Commission learned of the lynching of Alvaro Martinez, a justice of the peace, on March 13, 2001, in which State agents were implicated as responsible, but because not all the evidence was given due consideration, the accused were acquitted.[175] In light of these events, the Commission notes that impunity relates as much to current as to past events.

140.          In any case, since those guilty of the lynchings are alleged to act in the name of justice, the lack of an effective response by the justice system in the form of investigation, prosecution and immediate and effective punishment of those responsible sends a perverse message that "popular justice" is an acceptable alternative to the democratic system, the rule of law, and due process. Such impunity in turn generates new abuses, reduces people’s confidence in the rule of law, and encourages more acts of lynching. The Commission therefore considers that the State's response to this phenomenon is still inadequate. What is needed is a credible justice system and effective prevention policies that will increase people’s confidence in the civilian authority and encourage social legitimacy.

E.         Illegal units and clandestine security forces

141.          In Guatemala there exist illegal units and a clandestine security apparatus that operate as a parallel power to the State. These groups have been associated with drug trafficking, kidnapping, "social cleansing" assassinations, smuggling, large-scale larceny, and attacks and threats against human rights defenders, justice workers, witnesses, journalists, labor leaders and other social sectors. According to an analysis prepared by civil society on these acts of violence, they are perpetrated by entities that over time have perfected the use of it intelligence methods and techniques, operating with a full division of labor, and enjoying funding and impunity.[176] While many such events appear to be common crimes, the strategy behind them is of a political nature, intended to forestall any investigation that would bring to light the human rights violations committed by members of the Army or public officials.[177] Even when the violence committed by these groups is disguised as common crimes, there is a clear pattern of political violence, and these illegal and clandestine security units are behind them. The Commission received information that during February and March 2003 there was an increase in cases of political violence.[178]

142.          The Commission is aware that the activities of these illegal and clandestine security units relate primarily to organized crime, corruption and the trafficking, and it believes that these illegal activities, conducted under the cloak of impunity and tolerance, are seriously compromising democratic institutions and the rule of law in Guatemala.

143.          During its visit, the Commission learned both from official sources and from civil society of the increase in criminal activities by illegal and clandestine security units in Guatemala in recent years.[179] In May 2002, the Strategic Analysis Secretariat recognized the existence of these groups that are specialized in terrorist activities, in its report on "Elements for the Analysis of Human Rights and Considerations concerning Illegal and Clandestine Units". That report found that there has been a systematic pattern to operations of this kind, and that the existence of specialized terrorist groups is accepted.[180] The Human Rights Ombudsman's Office has 77 documented cases exhibiting similar patterns, in which the participation of such illegal units can be inferred.

144.          While these groups act autonomously, and are not part of government policy as was the case with human rights violations committed during the armed conflict, there is public information linking the activities of these illegal units and clandestine structures with senior spheres of government, PNC employees, military intelligence, the judicial system and the Attorney General’s Office. For example, evidence was found of the link between these groups and civilian officials, as well as military officers, operating both officially and unofficially within the executive and judicial branches.[181] In this respect, the Commission received information that the increase in violent acts is associated with the existence and functioning of illegal units and clandestine security forces that have links to organized crime and to government agents and structures, in particular the military intelligence services.[182] State acquiescence is also evident in the total impunity of reported crimes.

145.          On March 13, 2003, an agreement was signed between the Human Rights Ombudsman of Guatemala and the Ministry of External Relations to create a Commission to Investigate Illegal Groups and Clandestine Security Forces (CICIACS) to investigate human rights violations committed by agents or groups linked to the government, to organized crime, and to private security forces.[183] During its visit, the IACHR met with various government authorities who expressed their support for the creation of the CICIACS.[184] In particular, the Commission notes the work of the Human Rights Ombudsman, who maintains that the investigations into reported human rights violations allowed him to conclude that:

There are reasonable indicators of illegal units and clandestine forces operating in Guatemala, committing violent acts against human rights defenders, judges and badger streets, prosecutors, lawyers, congressional advisers, political leaders, journalists, priests, and indigenous representatives and historical guides, and many other persons; crimes that range from harassment, intimidation, and death threats, to kidnapping, selective murders, and massacres.[185]

146.          The draft Governmental Agreement creating the CICIACS also recognizes these facts and the threat they pose not only to persons and organizations that lay complaints, but to Guatemalan society as a whole.[186]

147.          The Commission condemns the existence of clandestine forces linked with the State or with economic or other interests, acting with the participation or tolerance of State agents. It therefore welcomes the initiative to create the CICIACS, which will investigate the activities of these illegal units, and it calls upon the government to provide that body with all the necessary resources to fulfill its investigation mandate effectively.

148.          The Commission also calls upon the authorities to cooperate in establishing the CICIACS, for which purpose it is crucial to adhere strictly to the terms of the political agreement of March 13, 2003, and to take the steps necessary to ensure that this investigation work is not superimposed on, but is rather complementary to, the primary work of the Attorney General’s Office. In this respect, the State has appointed a Special Prosecutor to "coordinate and carry out technical and scientific investigation work in cases where the Commission so requests, and to lay charges as appropriate, to guarantee the results of this effort sponsored by human rights organizations of civil society and the Office of the Human Rights Ombudsman".[187] The Commission urges the government to continue on this path and it calls upon all authorities to avoid placing obstacles in the way of the CICIACS's proper functioning.

149.          The Commission will continue to monitor the progress of the CICIACS, and will make available to the Guatemalan authorities and civil society its expertise and knowledge to help ensure the success of its mission. The Commission is confident that the United Nations and the Organization of American States will provide their full cooperation for the proper functioning of the CICIACS.

150.          The Commission considers it important that the Guatemalan authorities are determined to strengthen the legality of State institutions, and it stresses the need to report to the Attorney General’s Office those members of government who might be involved with these illegal units. It stresses that the establishment of the CICIACS could constitute an important contribution to investigating the crimes and human rights violations committed by these illegal units, as well as in fulfilling the State's obligations to prosecute and punish their members, and those government officials who collaborate with them, by act or omission. It is also important for the State to take the necessary measures to put these illegal bodies and clandestine security forces out of action.

F.         The Civil Self-defense Patrols (PAC) or Volunteer Civil Defense Committees (CVDC)

151.          The inter-American system has on repeated occasions examined the origin, objectives and functioning of the PACs, as well as their links to many of the human rights violations that occurred during the armed conflict.[188] The Inter-American Court has declared that:

The civil patrols enjoyed an institutional relationship with the Army, performed activities in support of the armed forces' functions, and, moreover, received resources, weapons, training and direct orders from the Guatemalan Army and operated under its supervision. A number of human rights violations, including summary and extrajudicial executions and forced disappearances of persons, have been attributed to those patrols[189]

152.          The involvement of the PACs or the CVDCs in the armed confrontation and in human rights violations during the armed conflict made it necessary to dissolve those groups when the Peace Agreements were signed. In this respect,

In this agreement [the Comprehensive Agreement on Human Rights] the Government of Guatemala also unilaterally undertakes not to encourage the organization of CVDCs or arm new ones anywhere in Guatemala as long as there are no developments to justify this. Subsequently, the Agreement on the Strengthening of Civilian Power included the commitment to demobilize and disarm the CVDCs, end all institutional relations between them and the armed forces, and prevent their being turned into new organizations so that these relations are not reestablished.[190]

153.          The Commission wishes to record that, in the context of the individual petitions system, it recommended to the Guatemalan State that it "effectively prevent the resurgence and reorganization of the Civil Self-defense Patrols".[191]

154.          Although the PACs or CVDCs were formally dissolved on December 29, 1996, with entry into force of the Congressional law repealing the decree creating the CVDCs, in practice those structures have been preserved and have continued to wield power in local communities. In 1996, the Army sponsored or supported the emergence of new organizations, which formally have other names and objectives than the CVDCs, such as the Pro-Improvement Committees, Peace and Development Committees, Defense Committees, and some former patrol members became presidents or members of these committees.[192] Those organizations retain the characteristics of the CVDCs and there have been a number of attempts to reorganize these groups into vigilante committees or local security boards, for the presumed purpose of combating crime. Some former members of the CVDCs were community leaders at the time they were recruited, and others, backed by the authoritarian power conferred upon them by the Army, exerted great influence in their communities. [193]Subsequently it was found that criminal organizations were being formed by former CVDC members.[194]

155.          During the visit, civil society organizations expressed to the Commission their concern over the reorganization of these groups, for possible purposes of intimidating the public, and also about the links between these groups and the Army and the PNC.[195] There is also information on the participation of former CVDC members in cases of lynching, threats, assassinations, wounding and illegal detentions, among others.[196] With respect to lynching, the Commission received information from the Office of the Human Rights Ombudsman according to which:

Lynchings reflect the culture of violence that the armed conflict left in its wake, and that is still employed by persons who in some way provided military service during the period of repression, such as former patrol members, former military officers, and soldiers who kill people every year.[197]

156.          The Commission received information on acts of harassment by former patrol members who are acting with at least the acquiescence of military detachments and municipal authorities in Jalapa, Izabal, Petén, Jutiapa, Quiché and Escuintla. Subsequent to the on site visit, the IACHR learned, with concern, that former members of the Civil Self-defense Patrol of Huehuetenango had taken hostages on October 26, 2003, as a means of pressuring the Government to make good its offer to compensate for wages forgone through their forced participation in the PAC during the armed conflict.[198] The international community has also expressed its concern over the possible regrouping of former CVDC members,[199] and the possible connection between those persons and the illegal units and clandestine security forces.[200]

157.          The State has reported that the link between the armed forces and the PACs was terminated before the Peace Agreements were signed. Nevertheless, there is evidence that many former members of the PACs continue their links with the Armed Forces and act under their orders, when necessary.[201] MINUGUA has reported that:

As regards the commitment not to let the CVDCs be transformed into new organizations, as recounted in other reports, the mission has received allegations about the resumption of institutional relations between the Army and groups of former CVDC members. Although it has not been able to verify the existence of such institutional relations, the mission has confirmed that contacts have continued between former CVDC members and both active-service and retired military officers.[202]

158.          In 1996 that was already evidence that the Army was supplying weapons and instruction to the CVDCs,[203] and in 1998 there were clandestine structures responsible for executions in the course of "social cleansing" operations, 10 of which were attributed to a group consisting of former members of the CVDCs and former military officers.[204] In 1999, these links were confirmed and there was evidence to suggest support and acquiescence by certain members of the Armed Forces.[205] In 2000, it was confirmed that these groups were maintaining contacts with the military authorities and with retired military personnel,[206] and this was confirmed in 2001, when MINUGUA observed that:

They often exercise leadership in authoritarian ways, using intimidation to resolve disputes in their favor, and preying on fears that they could resort to violence, as in the past. These practices and their continuing participation in “socia1 intelligence” activities of the Army’s Division for Civilian Affairs seem to suggest ongoing ties to the military.[207]

159.          During the visit, the State explained that the reorganization of the former PACs was not done with the intention of intimidating civil society, but that former patrol members had joined together recently in order to demand compensation for the wages they had forgone during their forced participation in the PACs at the time of the armed conflict. The Commission considers that any group of persons can legitimately exercise its right to association, and that there can be no objection to such action by former patrol members. Nevertheless, their role in the violations of human rights committed during the armed conflict, and the evidence of human rights violations committed by groups consisting of former patrol members since 1996, as well as the acts of intimidation cited, require the State to pay special attention to the regrouping of the former PACs. At this time, the Commission reiterates that the reorganization of the PACs for purposes of intimidating civil society places Guatemalan democracy at great risk, and the government's acquiescence in this matter violates international treaties, the commitments assumed under the Peace Agreements, as well as the national constitution. In this respect, these facts may invoke the international responsibility of the Guatemalan State.
 

G.        Conclusions and recommendations

160.          The indices of violence and crime in Guatemala are alarming, and therefore public safety is one of the most pressing concerns of society and of the Guatemalan government. The State has not succeeded in maintaining domestic law and order through the institutions democratically established for that purpose, nor has it succeeded in demilitarizing Guatemalan society.

161.          The government has fallen short in its efforts to combat the causes of violence; to reduce crime levels; to eradicate organized crime, corruption and illegal units and clandestine security forces; to demilitarize society and internal security; and to eliminate the practice of lynchings. Nor has the government succeeded in bringing the actions of the public security forces into line with human rights and constitutional principles. These elements are indispensable for reestablishing peace in Guatemala, and for restoring public confidence in democratic institutions. An effective government response in this area will create greater respect for democracy and will strengthen the rule of law, which is still a challenge in Guatemala.

162.          As a contribution to the development of a comprehensive State policy for combating crime and enhancing public safety, and consistent with the preceding analysis and conclusions, the Commission recommends that the Guatemalan State:

1.       Create preventive and coherent public policies that take account of the structural causes of violence and the high levels of crime, and that are targeted at overcoming them.

2.       Increased the budget of the National Civil Police as the institution responsible for domestic security in the country, and maintain the budgetary levels allocated to the Armed Forces in the Peace Agreements. Increase the material and human resources allocated to the National Civil Police in order to expand the quantity of police personnel, infrastructure, vehicles, weapons, ammunition and transmission capabilities of the National Civil Police. Continue to provide training for the police forces, in order to enhance the capacity of the officers trained, while improving the contents of the courses.

3.       Step up efforts to investigate and punish human rights violations committed by State agents, and remove persons involved in such deeds from their positions, making them ineligible for re-recruitment to the public security forces or to any other public position. This will require strengthening the work of the Professional Responsibility Office as well as the implementation of preventive policies to avoid the recurrence of such events. It will also require the establishment of internal and external control mechanisms to guarantee and monitor the proper functioning of the National Civil Police.

4.       Intensify initiatives to create a multiethnic and multicultural police force, in particular by recruiting members of indigenous peoples and women.

5.       Put an end to direct and indirect interference by the Armed Forces in domestic security matters, and limit the Armed Forces, in their budgeting and in their functions, to questions relating to national defense. Eliminate immediately the Armed Forces' intelligence gathering work, and provide the necessary means so that civilian intelligence is in a position to carry out the tasks formerly entrusted to military intelligence. Approve the new Military Code, bearing in mind the need to amend military criminal justice so that it is restricted to handling crimes committed in the course of military duty, excluding human rights violations or issues that should be handled through civilian jurisdiction.

6.       Improve human rights training for members of the Armed Forces, and implement the mechanisms now under consideration for punishing and removing military personnel who commit human rights violations in the exercise of their duties. Remove from the Armed Forces all persons who participated in human rights violations during the armed conflict. Give the Administrative and Security Affairs Secretariat the resources necessary to carry out the functions entrusted to it.

7.       Establish a comprehensive policy for combating the phenomenon of lynchings, taking into account its causes, where it occurs, under what conditions, and the opinions of the people in those localities. This policy should include a greater State presence in the interior and training for the National Civil Police in preventive policing, but it should also include a prompt, coordinated and interinstitutional response to this phenomenon. It must be implemented on a continuous basis, following rapprochement between the authorities and the community, by officers who are familiar with local characteristics and languages, and in cooperation with the local authorities. Combat impunity in reported cases of lynchings, for example through greater control over investigative work and the execution of court orders by the police.

8.       Cooperate as closely as possible in the investigative work of the Commission to Investigate Illegal Units and Clandestine Security Forces created under the political agreement signed on March 13, 2003, and use the results of those investigations to eradicate these illegal units. Proceed with judicial investigations into alleged violations of human rights committed by these illegal units, in order to punish those responsible.

9.       Prevent the resurgence and reorganization of the Civil Self-defense Patrols or Volunteer Civil Defense Committees and take steps to prevent government officials from cooperating in the reorganization of the former PACs.