CHAPTER IV

SITUATION OF INDIGENOUS POPULATIONS

A.        Introduction

210.          This chapter analyzes the information received by the IACHR regarding the situation of indigenous populations.  Guatemala is a multiethnic, multilingual and multicultural country, where Mayan, Garífuna and Xinca people represent over half of the total population. The Commission has expressed that Indigenous people in Guatemala have been historically discriminated due to ethnical reasons, that they represent a large portion of the poor or extremely poor population, and that they constitute a majority of the populations in those Departments with the highest indexes of social exclusion[231].

211.          The IACHR’s concern is not recent.  In the past the Commission has made recommendations to the State of Guatemala to protect and promote the human rights of the Indigenous people[232].  In March 2003 the Commission, in the Follow-up Report on compliance with recommendations, recognized the State’s initiatives in the subjects of intercultural education, participation of Indigenous populations, support and stimulation of rural production activities and, especially, those tending to eliminate discriminatory, racist and exclusion behaviors which continued to take place and were originated in Government offices themselves.  In spite of these advances, the Commission considered that the State of Guatemala had to make greater efforts to effectively implement the recommendations, especially in the area pertaining to compliance with the Peace Agreements, trial and punishment of those responsible for the massacres against the Mayan population committed during the armed conflict, and respect for and effective recognition of the human rights of Indigenous populations, including economic, social and cultural rights.[233]

212.          During the in loco visit the Commission had an opportunity to meet with Indigenous organizations, international organisms and Government authorities of Guatemala, obtaining valuable information and testimonies on the human rights situation of Indigenous populations.  The information offered by the IACHR is related to the compliance with the Peace Agreement on Identity and Rights of Indigenous Populations, especially on discrimination and social exclusion, to the reform made to the Penal Code that created the crime of discrimination and to the creation of the Presidential Commission to combat Discrimination and Racism against Guatemalan Indigenous Populations; to the access to justice; to the situation of Indigenous women;[234] to political participation and to the land situation.  In addition, the IACHR obtained information regarding the situation of impunity for the violations to human rights committed against Indigenous populations during the armed conflict and regarding the lack of indemnity for victims and their families.

B.        Discrimination and social exclusion of Indigenous populations

213.          The majority of the Indigenous population in Guatemala is Maya[235], Garífuna and Xinca.  Ethnical diversity makes Guatemala a country of immense human richness having its own cultural identity.  In spite of the fact that the Indigenous population has been oppressed since the colonial period[236] and that those in positions of power have practiced ethnical discrimination, indigenous peoples have been able to maintain their cultural identity, reflected in their traditions, community values, language, law and spirituality.

214.          Discrimination against Indigenous populations is undeniable in Guatemala.  Approximately 40% of indigenous individuals live in conditions of extreme poverty and nearly 80% of them are poor, having the lowest literacy rates and the lowest income of Guatemalan society.[237]

215.          Guatemala is mostly a rural country; most of the people living in rural areas are indigenous.  The rural population represents approximately 57% of families in the country, and nearly 61% of the total population of the country constitutes 73% of the homes in conditions of poverty and 93.2% of the homes in extreme poverty conditions.[238]  These numbers place Indigenous populations in conditions of particular vulnerability, discrimination and social exclusion, where the ones most affected are Indigenous boys and girls.  Approximately 67% of Indigenous boys and girls in Guatemala suffer from chronic malnutrition.[239]

216.          The dramatic exclusion and discrimination to which Indigenous populations in Guatemala were subjected to, became evident during the armed conflict, when 83% of the victims were Mayans, and against whom acts of genocide were performed.

217.          The Commission for Historical Clarification (CEH) expressed in its report that racism in the form of a superior doctrine, noticeable in the actions of the Guatemalan State, was one of the causes of the armed conflict and it “constitutes a fundamental factor in explaining the special rage and indiscrimination with which military operations were carried out against hundreds of Mayan communities in the Western and Northwestern sections of the country.  This was particularly true between the years 1981 and 1983, when more than half of the massacres and actions of leveled land [“acciones de tierra arrasada”] were conducted against the Mayans”.  According to CEH, the disproportionate response against the guerrilla was due to the contra-insurgent policy that attempted not only to destroy the social base of the guerrilla, but also to destroy the cultural values that granted it cohesion and collective action in Indigenous communities.[240]  In relation to the Government’s responsibility for these actions, the Commission for Historical Clarification expressed the following:

Agents of the Government of Guatemala, within the framework of contra-insurgent operations conducted during the years 1981 and 1982, executed actions of genocide against the Mayan people.  (…) Without prejudice to the fact that active individuals were at the same time the intellectual and material authors of the crime, in the actions of genocide committed in Guatemala the Government also is responsible, for in most of the cases, those actions resulted from a policy previously established by a higher authority.[241]

218.          The Commission observes that this situation of exclusion and discrimination has remained after the armed conflict ended.  As a matter of fact, the United Nations Development Program declared in 2002 that the relationship between ethnical composition of the Guatemala population and poverty, are the reflection of the systematic exclusion of the Indigenous population from the social, economic and political dynamics of the country, in clear detriment of their well-being and development, both at an individual and a collective level.[242]

219.          Peace Agreements,[243] especially the Agreement on Identity and Rights of Indigenous Populations, represented the historical opportunity for ending exclusion and discrimination of Indigenous populations.  Nevertheless, eight years after said Agreement was signed, the Commission was able to verify that the Agreement was the least complied with,[244] something that was confirmed on March 24, 2003 by the President of the Republic himself, within the framework of the presentation made by the Presidential Commission to combat Discrimination and Racism against Indigenous Populations in Guatemala.[245]  By May 7, 2003, the Agreement on Identity and Rights of Indigenous Populations continued to register long delays in its implementation, regardless of its obvious importance for the country.[246]

220.          The Agreement on Identity and Rights of Indigenous Populations expresses that the recognition of the identity of the Maya, Xinca and Garífuna populations is fundamental for the construction of national unity based on respect and the exercise of political, cultural, economic and spiritual rights of all Guatemalans and it states that Indigenous populations have been particularly subjected to levels of discrimination, exploitation and injustice due to their origin, culture and language, and they are treated unfairly and unequally with respect to their economic and social conditions.[247]

221.          As of the recognition of the identity of the Indigenous populations, the Government of Guatemala was forced to take specific actions, among them fighting against discrimination, fighting for cultural, civil, political social and economic rights, including consuetudinary Indigenous rights, rights related to land and the normalization of ownership of indigenous land.  During the in loco visit, several Indigenous organizations expressed that even if the Agreement on Identity and Rights of Indigenous Populations did not represent the totality of historical demands and aspirations of Guatemalan Indigenous peoples, compliance with the commitments generated upon its signature was still pending.[248]  According to Mayan organizations, the lack of integral implementation on the part of the Guatemalan Government “has signified the continuation of discrimination, exploitation and injustice practices based on origin, culture and language, practices to which the Indigenous populations have been subjected to, and that have contributed to a constant deterioration of the living conditions of Indigenous populations”.[249]

222.          In September of 2001, MINUGUA declared that those commitments related to Indigenous populations, subscribed by the Guatemalan Government in the Peace Agreements, had a very low rate of compliance,[250] so compliance with pending commitments was rescheduled, among these commitments were the ones related to multicultural aspects, educational reform with the components of bilingualism and inter-cultural aspects, promotion of use of Indigenous languages, and correction in land claim registration.  Ownership of Indigenous community properties, fight against legal and in facto discrimination, legal protection of Indigenous community rights, preservation and administration of temples and protection of ceremonial centers, recognition of standards of customary law, recognition of forms of organization and participation at a local level as well as in Development Councils, were all also rescheduled.

223.          In August 2002, on the occasion of the International Day of Indigenous Peoples, MINUGUA reiterated its concern for the serious delay registered in the application of the Peace Agreement on Identity and Rights of Indigenous Populations, as well as in the application of other instruments of the international system such as Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries, Convention (No.50) Recruiting of Indigenous Workers Convention, and Contracts of Employment (Indigenous Workers) Convention, all of  them belonging to the International Labour Organization (ILO), the International Convention of Elimination of all forms of Racial Discrimination,[251] the Convention on Elimination of all forms of Discrimination against Women, including other conventions and declarations pertinent to the eradication of discrimination.

224.          Lack of compliance with such commitments continues to generate levels of social, political and economic exclusion that are painful for Indigenous populations and are intolerable in an authentic democracy.  It is necessary for the State to immediately implement public policies to suppress discrimination against Indigenous populations.

225.          On this point, the State, in its observations on this report, noted that between April 2001 and March 2003, 16 specific commissions flowing from the Peace Accords were created; 65 legal provisions were issued (government orders, decrees, ministerial orders, etc.), which not only legalized and ordered compliance with the Peace Accords but also contributed to institutionalizing the peace process.

226.          In spite of the delay in fully complying with the Agreement, Indigenous organizations recognize that the actions taken to this day by the Guatemalan Government in order to implement the Peace Agreement, have enabled the opening of dialogue spaces and have made it possible–even though still at very incipient stages-for Indigenous individuals to participate in the debate of Guatemalan reality.[252]  The Commission received information on the activities carried out by the Government, seeking to comply with the commitments acquired in the Agreement on Identity and Rights of Indigenous Populations.  Between April 2001 and March 2003 the Government extended the scope of the National Program of Bilingual Education, in which teachers (Kaqchikel, Mam, Q’eqchi’, Q’anjob’al, and Ixil) were trained in reading and writing in their own languages; the operation of thirteen Bilingual Teacher Training Schools in seven different Mayan languages was consolidated; six ethnic criminal defense offices contributing to multicultural and multilingual strengthening of the legal system were implemented; and the concept of sacred places was defined within the framework of the activities of the Commission for the Definition of Sacred Places.[253]  In spite of the above, the Commission again points out that the greater parts of these actions are still at an incipient stage and are far from being duly implemented.[254]

227.          Guatemalan legislation contains regulations of constitutional and legal rank[255] related to Indigenous populations.  The legislative tendency of the last decade concerning this subject has been characterized by incorporating into the code of laws, in a disperse manner, regulations of recognition and protection in favor of Indigenous rights.  For example, those related to promotion of intercultural bilingual education, the creation of institutions to provide protection and defense for Indigenous women, the incorporation of the crime of discrimination, and the recognition of Indigenous languages as national languages, among others.[256]  Nevertheless, due to their lack of effective implementation, these regulations–many of which are very old- have not had the results that said regulations persecuted.

228.          It is important that legislative actions on the subject of Indigenous populations be compatible of Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries and with commitments acquired in the Agreement on Identity and Rights of Indigenous Populations.  The agreement mentioned subscribed with the ILO has been in force since 1997, and it constitutes the most relevant international instrument for human rights of Indigenous populations.  With respect to the effect that Convention No. 169 has had in internal legislation, Guatemala only complied with 22% of the regulations in question.[257]  The Commission recognizes the recent passing of the Law of National Languages, which has the objective of recognizing and promoting Indigenous languages in Guatemala in the corresponding linguistic communities, both for the public sector as for the private sector.[258]  The IACHR recommends to the State that it effectively and immediately implement the dispositions of the law in question.

229.          In its observations on the report, the State declared that, through this Language Law, "it will ensure that, in the provision of public goods and services, it becomes a practice to communicate in the language of the local community, and this practice will be encouraged in the private sphere.  As well, access to health, education, justice and security, as priority services, will be facilitated, by ensuring that people are informed and served in the language of each linguistic community, without prejudice to the gradual incorporation of other services."[259]

230.          On the other hand, on September 11, 2002, the Guatemalan Congress issued Decree 57-2002, which adds Article 220 bis to the Penal Code,[260] with the objective of punishing with imprisonment and fine the individual who by action or omission incurs in discrimination or prevents or makes it difficult for an individual, group of individuals or associations, to exercise a legally established right, including consuetudinary right or custom; and it establishes aggravating circumstances of penal type for discrimination due to language, culture or ethnicity.

231.          The new penal figure was criticized by different Indigenous organizations that, in general terms, expressed that congressmen did not consult with Indigenous organizations regarding the text of the law, they did not take into account the recommendations said organizations presented to the National Congress, and they did not adjust the reform made so that it would be in accordance with the spirit of the Agreement on Identity and Rights of Indigenous Populations, with Convention No. 169 of the ILO, with the Political Constitution of Guatemala and with the International Convention on Elimination of All Forms of Racial Discrimination.  In the end, this meant a regulation of general nature, which did not adequately consider the specificity of Indigenous populations and did not establish mechanisms and measures to avoid the racism that takes place in Guatemala against the Maya, Garífuna and Xinca Indigenous peoples.[261]  The Commission believes that the penal regulation set forth in the Penal Code does not reflect all the discrimination motives prohibited by Article 1 of the American Convention.  During its in loco visit the Commission received information according to which a series of denunciations had been presented before Guatemalan organisms, which were pertinent to the application of the new penal regulation; nevertheless, those denunciations had not been investigated and sanctions not established with the required diligence.

232.          The Inter-American Commission on Human Rights believes the text of the regulation in question should have been written previous consultation with Indigenous populations in Guatemala.[262]  At the same time, the Commission is able to observe that independently of what this regulatory scheme implies, it becomes necessary to apply it correctly on the part of internal courts.  To this end, the Commission believes that the approval of said penal regulations for racial discrimination, by itself, will not be able to solve this serious problem in Guatemala, so it becomes imperative to prevent the existing impunity for this type of crimes, and, to establish effective judicial mechanisms to obtain civil compensation for damages originated by discrimination.

233.          Government Agreement No. 390-2002, creating the Presidential Commission to combat Discrimination and Racism against Indigenous populations in Guatemala[263] was published on October 9, 2002.  This Commission is integrated by five persons named by the President of the Republic, in consultation with Indigenous organizations.  On March 21, 2003, in an event headed by President Alfonso Portillo, the Presidential Commission conformed by three Mayan, one Xinca and one Garífuna members was presented to the general public.[264]  The Commission recognizes that this is an important initiative and it is confident that the Presidential Commission will be able to effectively fulfill its objectives, especially that of formulating public policies that guarantee the elimination of discrimination and racism against Indigenous populations.

234.          The Commission has considered that those commitments acquired through the Agreement on Identity and Rights of Indigenous Populations signify that the cultural racist and discriminatory pattern followed by Guatemalan society needs to be modified.  This modification requires a process of profound economic, social and cultural changes implying the permanent and integrated work of the Government, the social and economic agents and the Indigenous populations.  In addition, it recognizes that during the last few years the Government has tried to comply.  Nevertheless, the present reality of Indigenous populations demonstrates that these efforts have been insufficient.  Guatemala democracy will not be consolidated if the State does not adopt those measures required to eliminate systematic discrimination against Indigenous populations and sequels remaining from historical discrimination. 

C.        Access to justice

235.          Article 66 of the Political Constitution establishes that the State must recognize, respect and promote ways of life, customs, traditions and forms of social organization for Indigenous populations.  In addition, the Agreement on Identity and Rights of Indigenous Populations expresses that the “traditional regulatory scheme of Indigenous populations has been in the past, and continues to be, an essential element for the social regulation of community life, and, therefore, for maintaining its cohesion.”  The Government recognizes that “both the lack of knowledge regarding consuetudinary regulations that regulate Indigenous community life on the part of national legislation, as well as the lack of access of Indigenous populations to the national legal system, have given way to denial of rights, to discrimination and limitation”.[265] 

236.          As expressed in the chapter on administration of justice in Guatemala, the State has not complied with its obligation to install and apply a judicial system that is in accordance with the existing cultural diversity in the country, as well as mechanisms which enable the effective recognition and promotion of indigenous rights, according to their traditional regulations, using international regulations on human rights as a parameter.  Access to justice on the part of Guatemalan Indigenous populations includes two different aspects.  On the one hand access to State justice, and on the other, recognition and respect for Indigenous rights; both systems must be compatible with internationally recognized human rights.  From both perspectives, the present political situation limits access to justice for Indigenous communities. 

237.          Measures adopted by the State in order to ensure access to justice have not led to an effective and equalitarian access to justice for the entire population.  As a matter of fact, the creation of the Centers of Justice Administration (CAJ) in areas that are predominantly indigenous, have not rendered the expected results due to the lack of resources and the lack of intercultural training for those justice operators which integrate them.  As it was stated in the chapter on justice administration in Guatemala of the present report, during the in loco visit the Commission had the opportunity to meet in Nejab with its Governor, the Mayor and the CAJ justice operators.  On this occasion it was able to witness the grave budget deficiencies of the legal system in the area, which become evident in the jail system infrastructure, where prisoners are held in infrahuman conditions and the judicial police in charge of jail security live in deplorable conditions.

238.          Some efforts have been made to train judicial personnel in indigenous culture and identity, as well as for having translators available for legal processes.  For example, a Commission of Indigenous Affairs was created at the Bench, a course on Indigenous Rights and another on Indigenous affairs awareness were made official at the School for Judicial Studies, and a three-week training course on Indigenous consuetudinary rights was offered during the Summer.  The number of lawyers working at the Indigenous Defense Office was increased and a language mapping that took two years to be completed was made in the country, mapping which will be used for integrating justice into the Mayan population.  In addition, according to information received, Guatemala has 98 bilingual judges, 323 justice bilingual assistants, 43 bilingual interpreters, and 86 bilingual administrative personnel.[266]  Nevertheless, efforts made by the State do not imply that the State fulfills its obligation to provide interpreters each time they are required by the different parts for legal proceedings of any kind, and those efforts are not sufficient to ensure effective access, in practice, by Indigenous populations to the judicial system.[267]  The Commission recognizes that this constitutes a complex job and that it requires important resources due to the wide variety of languages spoken in Guatemala.  Nevertheless, one of the fundamental guarantees existing within judicial processes is that the different parts are able to understand and be understood. 

239.          With respect to the creation of Community Peace Courts, approved by Congress in 1997, five of them are presently operating.[268]   The State indicated to the IACHR that community courts are integrated by three members from the communities and consuetudinary law is applied by them, said law is legally recognized if it does not violate the National Constitution nor international treaties on human rights.  To this respect, different organizations have informed the IACHR that the implementation of the Community Peace Courts has implied an effort of recognition of the conflict resolution system at a community level; but, it has constituted a limited experience[269] and it is not necessarily the result of the recognition of indigenous rights, mainly because national legislation[270] grants authority to the Community Peace Court to solve conflicts according to the uses and customs, equity and general law principles, whenever possible, enabling the court to make decisions without taking into account Indigenous consuetudinary law.

240.          As expressed by the Commission, progress made in recognizing Indigenous rights is just beginning, and the majority of that progress has been limited to academics. To this date it has not been possible to verify the existence of the political will required to analyze and recognize said rights, which in practice, Indigenous populations have been exercising in Guatemala for centuries.  As mentioned in the corresponding chapter, access to justice on the part of every inhabitant is vital for strengthening democracy and enforcing the rule of law.  Protection of the rights of indigenous populations requires the adoption of specific measures by the State in order to ensure effective access to justice.  To this respect, the Commission urges the State to encourage the recognition of Indigenous rights concerning international regulations on human rights, as well as to adopt effective measures that enable better and improved access to justice by every Guatemalan citizen. 

1.         Impunity and Indigenous populations

241.          The Commission reiterates that the persistence of high levels of impunity does not only signify that numerous serious crimes remain unpunished, but, that this becomes a situation that affects the life of the nation itself and its culture.  In Guatemala, impunity for serious violations to human rights committed during the internal armed conflict, against the members of the Mayan population, reaches levels of such magnitude, that it is concluded that what is left of a racist and discriminatory culture continues to affect large sectors and areas of Guatemala society, reflected especially in the justice administration system. 

242.          During the armed conflict the Mayan people were victims of massive and cruel violations of their human rights, manifested in massacres, operations of land leveling [“operaciones de tierra arrasada”],[271] kidnappings, executions of authorities, leaders and spiritual guides, affecting the life and the physical integrity of the members of these populations and of entire communities, affecting as well the ethnic or cultural identity of the people themselves.[272]  Of the total number of cases of violations registered by CEH, 70% were committed against Mayans, 10% against Ladinos and 0.1% against others, and in 19.9% of violations, it was impossible to determine the ethnic background of the victims.  In the 83.3% of individual cases of victims identified by CEH, 83.3% were Mayans, 16.5 Ladinos and 0.1% others.[273] 

The perception of the Army regarding Mayan communities as natural allies of the guerilla, contributed to increase and affect the violations of human rights made against the Mayan people.  This made evident an aggressive racist component, an extremely cruel one, reaching the massive extermination of defenseless Mayan communities thought to be involved in guerrillas, including children, women and old people, using methods of such cruelty that they originated feelings of horror in the moral conscience of the civilized world.[274] 

243.          CEH registered 626 massacres committed by Government forces during the armed conflict, especially by the Army, supported by paramilitary structures such as the Civil Self Defense Patrols, and Military and Judicial Commissioners.  95% of these massacres took place between 1978 and 1984, and during this period 90% were carried out in areas predominantly inhabited by the Mayan people.[275]  To this respect it must be noted that according to information received by IACHR, this number of massacres could be easily increased.  In effect, by virtue of the work conducted by the Forensic Anthropology Foundation of Guatemala, of the over 300 exhumations carried out by the Foundation, approximately half correspond to those registered by CEH.  This is due to the fact that with the passage of time survivors have been loosing their fear of denouncing clandestine cemeteries that constitute proof of the cruelty involved in the Guatemalan armed conflict.

Time will never be sufficient to heal the wounds left in men, young men, children, old people and especially women, originated from that violence.  Our relatives were cut off from their circle of life, they were tortured or made to disappear, kidnapped and massacred.  Both men and women found their early, violent and unknown deaths, and their hundreds of bodies are buried in clandestine cemeteries located on cliffs, roads, forests and underneath buildings, making it impossible to exhume them.  Animals ate some of the bodies and others were thrown in rivers such as the Motagua, Pixcayá and Usumacinta, and still others were thrown in volcano craters.  It will be thus impossible to get to these bodies.  This is the road to Calvary for multiple families, wives, parents, children and grandchildren of survivors of the genocide carried out by the military in Guatemala.[276] 

244.          In Guatemala, those responsible for the violations of human rights against the Mayan people, which included acts of genocide, committed during the armed conflict, especially during the decade of the 80’s, enjoy complete impunity.[277] 

Consequently, CEH comes to the conclusion that agents from the State of Guatemala, within the framework of contra-insurgent operations, conducted between the years 1981 and 1983, carried out acts of genocide against groups of the Mayan people living at the time in the four regions that were analyzed.[278]

The above conclusion is based on evidence that proves that, according to what is established in Article II of the Convention for Prevention and Sanction of the Crime of Genocide, members of Mayan groups were killed (Article II, letter a), serious damage to their physical and mental integrity was made (Article II, letter b), and acts of intentional submission of groups affected by limiting conditions originating or possibly originating their total or partial physical destruction were carried out (Article II, letter c).  It is also based on evidence that all such acts were perpetrated “with the intention of partially or totally destroying” groups identified by their common ethnic origin, regardless of the cause, motive or final objective of said acts (Article II, first paragraph).  CEH has information that similar incidents took place and were repeated in other regions inhabited by the Mayan people.[279]

245.          The Commission emphasizes that it is necessary for the State to fulfill its obligation to investigate, judge and punish those responsible for the massacres and violations of the right to live, violations of personal integrity and other human rights of members of Indigenous populations of Guatemala, that took place during the armed conflict. 

246.          Recent murders of Indigenous leaders and the impunity of said acts demonstrate that the eradication of racial discrimination in Guatemala is still pending, as is demonstrated by recent accusations.  The Special Representative of the United Nations  dealing with the situation of human rights defenders, as well as the Special Spokesman of the United Nations Human Rights Commission dealing with the situation of human rights and fundamental liberties of Indigenous individuals, expressed their concern regarding the murders of Diego Velásquez Brito and Antonio Pop Caal, two prominent Indigenous leaders.[280]  At the same time, the IACHR expressed its concern for the murder of Diego Xon Salazar, Mayan priest and defender of human rights, who lived and worked in the Chamanchaj Village of Municipal de Chichicastenango.[281] 

247.          The Commission estimates that the impunity of those responsible for violations to human rights of the Mayan people that took place during the armed conflict, the impunity of those who murdered leaders of the Mayan people during the last few years, as well as the lack of investigation of acts of discrimination against members of Guatemalan Indigenous populations, affects not only the rule of law, but also the dignity of the people.  Only through effective actions that tend to eradicate discrimination due to ethnic origin–that has so severely damaged Guatemalan society-will it be possible to consider building a solid State of Law.

2.         Reparation to victims of the armed conflict

248.          Having access to an effective and impartial justice implies the possibility of investigating and punishing those responsible, as well as the obligation of providing reparations to the victims of violations of human rights.  Providing relief to the victims of violations of human rights that took place during the internal armed conflict against the Mayan people is a job that is still pending in Guatemala.[282]

249.          During its in loco visit, the Commission had the opportunity to hear the opinions of Indigenous organizations regarding the Compensation National Program.  The information gathered indicates the need for the mentioned Program to provide justice and dignity to the Mayan people.  This program has to contemplate compensation for genocide, as well as cultural and environmental compensation.  According to information received, the short-term plan implemented up until March, 2003[283], did not fulfill the needs of Indigenous populations and tended to confuse State responsibility.[284]

250.          With respect to compensation, the Guatemalan State declared in its observations that, in recognition of the institutional responsibility of the State in cases of serious violations of human rights, it has paid Q56,109,362.74, 63,049,306.74 (sic) in economic compensation, through friendly settlement procedures and in payment of reparations under judgments issued by the Inter-American Court of Human Rights, payments that have been made with the greatest political will and with the objective of repairing the damage suffered by Guatemalan families who are seriously affected by the prolonged internal conflict, and by the polarization, extreme poverty and violence that have severely damaged our social fabric.  The Commission appreciates the efforts made by the State to fulfill its international commitments under the inter-American system for human rights.  Nevertheless, it notes that the Guatemalan government did not provide information on steps taken to implement the National Program of Compensation for human rights violations committed during the domestic armed conflict.

251.          After several years of having a commitment to legally strengthen the Compensation Program, Government Agreement 258-2003 was published on May 8, 2003.  Said Agreement establishes the guidelines contained in the National Compensation Programs for victims of the internal armed conflict, as well as the creation of the National Commission for Compensation as executing entity, to be conformed by five Government representatives and five civil members.[285]

252.          The Commission is concerned by the absence of political will detected with respect to the Compensation National Program.  This is manifested in the fact that after so many years of the signing of the Peace Agreements, indigenous victims of the armed conflict have not been effectively, individually or in groups been compensated accordingly, thus special attention will be given to the implementation of the Compensation National Program.

D.        Political participation

253.          Article 66 of the Political Constitution of Guatemala establishes the recognition, respect to and promotion of different forms of social organization of Indigenous populations.  In addition, the Agreement on Identity and Rights of Indigenous Populations recognizes that “Indigenous populations have been discriminated with respect to making political decisions for the country.  It is extremely difficult, if not impossible, for these populations to fully and freely express their demands and defend their rights”, making it necessary to “institutionalize the representation of indigenous populations at local, regional and national levels, in order to ensure their free participation in the decision-making process in different areas of national life”.  

254.          The pattern of exclusion to which Indigenous populations have been submitted is reflected not only by the minimal participation exercised in Government leading positions, but by the little respect existing for traditional ways of participation on the part of these populations. 

255.          In spite of progress made in this area, it is still possible to observe the ethnical and cultural Guatemalan diversity in the traditional manner of exercising power.  Some political parties have recently incorporated, in increasing numbers, individuals of Indigenous origin into positions elected by popular vote, and the number of Indigenous congressmen has increased.  In addition, the positions of the Minister of Culture and the Vice Minister of Education were filled by professionals of indigenous origin, and in June 2002 the Encounter of Male and Female Indigenous Leaders created the National Council of Indigenous Populations that is to function as intermediary with Government institutions.  In any case, participation in official Government channels does take into account the demographic presence and the cultural influence of indigenous populations, and it doesn’t represent the country’s ethnical diversity, especially at a national level.  Also, indigenous voting abstention rates are high, there are very few Indigenous individuals running to be elected in official positions or posts of responsibility, and the existing few have little influence when making political decisions.  At the municipal level, high rates of voting age individuals who are not officially registered in the voting census, plus the lack of identification of women, refugees and internally displaced, originates an especially low rate of participation.  On the other hand, even if the indigenous representation at a local level is proportionally greater than at a national level, due to the fact that through civic committees not affiliated to political parties individuals are able to be elected in positions of mayors, trustees or other, this is still not sufficient.[286]

256.          Regarding traditional forms of indigenous organization, it has been reported that in certain cases there have been conflicts among traditional indigenous authorities and national or department authorities arising from different factors such as access to community property and the resolution of local conflicts.  In cases such as the one of the Mayor’s Office of Sololá and of the community Mayors of Totonicapán, the State has made an effort to eliminate Indigenous authorities in order to take away power and influence.  On the other hand, the Commission has observed that Self-Defense Patrols continue to operate at a local level in the form of groups exerting power at a local level, making it difficult to restructure traditional social organization forms, especially those of the Mayan people in some regions of the country.[287]  Behind an apparent peace, this situation provokes a high level of conflict and fear in the Indigenous population, making it impossible to achieve social peace.[288] 

257.          According to information received during the in loco visit, actions taken by the State have not been successful in insuring the full political participation of Indigenous populations.  In spite of the fact that the Political Constitution has been modified on several occasions during the past few years, said reforms have not constituted changes that would be significant in providing opportunities for ample and fair participation on the part of Indigenous populations.  This is based especially on the fact that the present Guatemalan electoral legislation does not take into account those principles, procedures and mechanisms that are in accordance with the forms of political organization of Indigenous populations.[289]  The Commission has observed that in spite of the constitutional recognition of the social organization of Indigenous populations, traditional authorities in multiple occasions are not recognized or respected by national or departmental authorities, originating power conflicts that affect indigenous communities.[290]  On the other hand, the Mayan Defense Counsel’s Office, the Guatemalan Indigenous Development Fund and the Academy of Mayan Languages, institutions created to increase Indigenous participation, do not have the resources or the autonomy required for achieving their objectives.[291]

E.         Land situation

258.          As mentioned, Guatemala is a mostly rural country.  According to the 2002 Human Development Report of UNDP,[292] for the last 20 years the concentration of land continued to be very elevated.  Land conflicts are one of the many problems that especially affect Indigenous populations in Guatemala, and the same are derived from the consequences of the armed conflict, which include leveled land [“operaciones de tierra arrasada”], poor economic conditions, the coffee crisis, lack of recognition of Indigenous territory, and lack of registration system that recognizes ancestral territory and enables the protection of land belonging to the Indigenous populations.[293] 

259.          94% of minor exploitations (in micro farms and sub family farms) include 18.6% of the land, while 1.5% of larger exploitations (with over 33 ½ acres) amount to 62.5% of farm surface.  In addition, 23.6% of total land is in Indigenous hands, 6.5% corresponds to farms headed by females and almost 80% corresponds to farms headed by non-Indigenous male individuals.  The percentage of land held in Indigenous hands is less than half of what it should be in relation to the number of Indigenous inhabitants, and this is originated in the history of expropriation to which this population was subjected.  This is not then surprising in a society that has been historically one that excludes, especially due to ethnic and gender reasons.[294]

260.          The Commission has received information regarding persecutions, threats, arrests and even murders of peasants and Indigenous people that were defending their right to the land.[295]  Several organizations have informed the Commission that the Guatemalan Government does not have the political will to eradicate poverty in rural areas, visualized in the lack of opportunities for access to land, lack of social services, work exploitation in rural areas and scarce job opportunities.

261.          n its observations on this report, the State of Guatemala declared that, in June 2001, the President of the Republic, through Government Order 172-2001, created the Presidential Unit for Dispute Settlement, as a political and juridical alternative to the country's historic bodies for dealing with agrarian problems, human rights violations during the armed conflict, etc., and that it had successfully solved a land dispute that had been outstanding for more than 100 years, involving the community of Los Cimientos, and another one in Military Zone 20, both located in the Department of Quiché, and that it had achieved follow-up to negotiations in the Estrella Polar case and in the conflict between the communities of Santa Maria Ixtahuacan and Nahuala in Solola.[296]

262.          During the in loco visit the Commission was able to confirm that no advances have been made in this area, instead, the crisis that affects the poor has deepened.  This social situation increases social exclusion and doesn’t favor development for the majority of the Guatemalan population, making it impossible to implement a truly democratic society and a strong State of Law.  The Commission reiterates the need for the State of Guatemala to take the necessary measures and establish prompt and efficient mechanisms to provide solutions to possession conflicts and to guarantee and offer legal assurances to Indigenous communities with respect to possession of their land.  It is also necessary for the Government to offer land belonging to the State to those communities that require these lands for their own development, all in accordance with the Political Constitution.[297]

F.         Conclusions and recommendations

263.          The Commission observes the particular social exclusion to which Indigenous populations are subjected, materialized through a pattern of permanent ethnical discrimination.  Also it is able to observe that those Peace Agreements related to indigenous populations are the ones of lesser degrees of compliance.

264.          The Commission is able to confirm that the troublesome present situation of Indigenous populations harms the effective development of democracy and the possibility for a strong State of Law in the country.  Guatemalan democracy will not be consolidated until the systematic discrimination to which indigenous populations are subjected is abolished, their participation in politics is increased, and their exclusion from society is ended.  In addition, the State has to provide them with the means necessary for their adequate development.  To this end, it is indispensable that they are granted greater access to justice and that their indigenous rights be recognized, all within the international parameters of respect for human rights.

265.          In order to make a contribution with respect to the rights of indigenous populations and the strengthening of the State of Law in Guatemala, the Commission recommends the following to the Guatemalan Government:

1.                  To take the necessary measures to prevent, punish and eradicate discrimination against Indigenous populations and their members and to take the necessary measures to eradicate the social exclusion to which they are being subjected.  To this respect, special protection must be provided to Indigenous boys, girls and women who find themselves in a situation of particular vulnerability, discrimination and inequality.

2.                  To comply effectively with State commitments corresponding to the Agreement on Identity and Rights of Indigenous Populations.  To stimulate and adopt legislative initiatives or other initiatives that are compatible with Convention (No. 169) concerning Indigenous and Tribal Peoples in Independent Countries from ILO, with commitments acquired in the Agreements on Identity and Rights of Indigenous Populations, and with international instruments of human rights.

3.                  To adopt the necessary measures to insure effective access to justice on the part of indigenous populations and their members, especially measures related to providing translators and justice operators who know indigenous culture, language and customs; and to provide recognition of indigenous community rights that is in accordance with basic human rights.

4.                  To investigate, process and punish those responsible for the massacres and violations of life, integrity and other human rights against indigenous populations and their members, which took place during the armed conflict, base on the implementation of a genocidal policy in the decade of the 80’s.

5.                  To establish the necessary measures to promote full political participation of members of indigenous populations, through more participation in posts of public office, as well as through increased recognition of traditional forms of indigenous organization.

6.                  To establish especially fast and efficient mechanisms to solve conflicts of land property, in order to guarantee and provide legal certainty to indigenous communities with respect to ownership of their land, and to provide State land to communities that need it for their own development, as is established in Article 68 of the Political Constitution of Guatemala.

266.          In its observations on this report, the Guatemalan State declared that "it shares the concerns expressed by the Commission with respect to indigenous peoples, and for that reason it has paid particular attention to those peoples during the last four years, guided in its efforts by all the commitments assumed under the Peace Accords, as well as those flowing from the various international instruments to which the State is party."[298]  It adds that the IACHR report fails to mention some of the steps taken by the State on the issue addressed in this chapter and that "in the interests of a fair and balanced portrayal that will dispel doubts about the government's political will" it asks that the following facts be considered: the issuance in recent years of a series of social legislation giving greater representation to indigenous peoples on issues of public policy, including representation for indigenous communities in the Development Councils (Development Councils Act), decentralization activities (Decentralization Act), and facilities under the Nongovernmental Organizations Act that provide for the right of free organization; as well, the new municipal code stipulates that "the government of the municipality must recognize, respect and promote indigenous village governments, where they exist, including their own forms of administrative operation"; within the civil service, preference will be given to public officials who, besides Spanish, can speak, read and write the language of the linguistic community where they perform their functions, and in the case of active public servants, they must be encouraged to take training so that they can provide service in the relevant linguistic and cultural context, in coordination with the Guatemalan Academy of Mayan Languages.  The State also reported on the Law to Promote Education against Discrimination, of November 2002, whereby the Ministries of Education and of Culture and Sports are to promote and disseminate respect and tolerance towards the Guatemalan nation which is multicultural, multilingual and multiethnic, and promote and disseminate programs to eliminate ethnic, racial or gender discrimination, or any kind of discrimination; implementation of a multicultural module within the Support Program for Reform of the Justice Sector to promote establishment of a justice system that recognizes the multilingual and multicultural nature of the country in the Justice Administration Centers; the provision of the Ministry of Education whereby students in educational establishments are free to use indigenous costumes that identify their ethnic origin; publication of a national linguistic map; a sensitization project for the commissioning of justices of the peace, under which, as of September 2003, 38 workshops had been held in 30 interior municipalities, for justice workers and members of the community; the operation of Mobile Judges, since 2003, intended to bring justice closer to people who live in extreme poverty; creation of Special Units on Gender, Indigenous Peoples and Human Rights within the public administration; the restoration of traditional games, through the General Directorate for Sports and Recreation, representing the various cultural expressions of indigenous peoples, such as the first national pelota maya championship; the concession of a television channel to the Academy of Mayan Languages in November 2003; creation of the Division of Cultures under Government Order 354-2001 of August 21, 2001, to promote recognition of cultural and linguistic diversity, and encourage interculturalism; creation of the Sacred Sites Unit within the Ministry of Culture and Sports, by means of Ministerial Order 510-2003 of September 19, 2003; the draft law on nationwide free practice of spirituality; implementation of programs to promote indigenous cultural traditions and art, and creation of the Department of Indigenous Peoples within the Ministry of Labor and Social Welfare; and the broadcasting of programs in indigenous languages.[299]

          267.    Finally, the Commission appreciates the observations made by the Guatemalan State on this chapter, and the fact that it shares the concerns presented by the IACHR.  It also welcomes the efforts that have been made, which it considers important tools that should be strengthened, in particular as they relate to participation and overcoming poverty, so as to eliminate that particular social exclusion in which indigenous peoples find themselves, and which is reflected in a continuous pattern of ethnic discrimination.