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Guatemala’s unforgiven

By 8am on 12 August 2005, the Sacapulas Municipal Hall is filled with residents of surrounding villages, dressed in traditional traje and speaking quietly in Quiché, the local indigenous language. Representatives of the Guatemalan government, weary from the five-hour drive to the small highland town, and looking uncomfortable in their stiff suits, begin to take their seats on the stage. Despite the heat and the crowd, in the early light the hall has the reverent hush of a chapel.

Domingo, Agustín and Juan sit silently in the first row, their faces revealing a sadness which the events about to take place will do little to ease. They are preparing to hear government officials publicly accept state responsibility for the 1990 murder of their mother, María Mejía, a respected community leader and outspoken critic of the army. They will offer formal apologies, and seek her family’s forgiveness.
The banner suspended above the officials’ heads, bearing a photo of María and printed with stark black lettering, expresses succinctly the response they can expect: No hay perdón sin justicia—No forgiveness without justice.

Fifteen years after her brutal assassination in front of her husband and children by members of the military who still live in their village, no investigations have taken place, no one has been charged, and the case remains, like thousands like it, in absolute impunity.

Guatemala is still coming to terms with peace a decade after a 36-year civil war ended with the signing of peace accords. Among the challenges it faces is how to address the profound damage caused by decades of conflict and state repression, which included atrocities such as the massacre of hundreds of indigenous villages, tens of thousands of ‘disappearances’ and widespread torture.

As in other countries undergoing post-conflict transitions, Guatemala established a truth commission as part of its reconciliation process. In 1999, the Historical Clarification Commission (CEH, for its initials in Spanish) published its report, Guatemala—Memory of Silence, which concluded that the civil war had claimed more than 200,000 victims, 83 per cent of whom were indigenous Mayans. The report found that the state was responsible for 93 per cent of the human rights violations committed, which included genocide.

The CEH’s recommendations, in addition to stressing the importance of the peace accords, sought to specifically address victims’ needs. These recommendations included measures for dignifying the memory of victims, a wide-ranging reparations program, and, importantly, justice.

Over the past six years Guatemalan governments have implemented some of these recommendations, most notably via the creation of a National Reparation Program, which includes material restitution (such as building roads), economic compensation, psychological rehabilitation, and measures to dignify victims (such as monuments and the renaming of buildings). Little has been done, however, to bring those responsible for human rights crimes to justice.

In contrast to other societies undergoing post-conflict transitions, Guatemala did not pass sweeping amnesty laws as part of its reconciliation process.

The 1996 National Reconciliation Law, which provides for the limited exemption of responsibility in some cases, specifically excludes crimes against humanity—in particular genocide, forced disappearance and torture—committed during the internal armed conflict. The CEH recommended that those responsible for such crimes be prosecuted, tried and punished.

This means there is no legal barrier to proceeding against human rights violators. On the contrary, the gover nment has strong political, legal and moral obligations to bring those responsible to justice. Politically, it committed itself to fight impunity in the Global Agreement on Human Rights, one of the principal peace accords signed in 1994. In addition, the nation’s constitution and a range of international human rights treaties impose a legal duty to investigate, try, and punish human rights violators. The moral imperative is confirmed by the proliferation of victims’ organisations since the signing of the peace accords and their persistent demand that justice is the only path to real reconciliation.

Despite this, impunity remains a fact for almost 100 per cent of human rights abuses committed during Guatemala’s civil war.

There are many reasons for this, the primary one being a lack of political will: the political spectrum remains dominated by right-wing parties whose members and supporters among the armed forces might well be the focus of criminal investigations.

Lack of political will is compounded by the systemic weaknesses of the justice system. The institutions responsible for carrying out criminal investigations are under-resourced, staffed by inadequately trained and inadequately experienced personnel, and show little interest in initiating the investigations as they are required to do by law. The court system is renowned for its inefficiency, inconsistency and corruption.

Furthermore, the Ministry of Defense is unco-operative with criminal investigations indicating military involvement in human rights crimes. It has classified much of the information held by the armed forces as ‘state secrets’, in order to prevent its release. When cases do come to trial, the army defends its own by paying lawyers who employ obstructionist legal tactics aimed at delaying proceedings and exhausting victims’ resolve.

In light of these obstacles, only a handful of cases have been adequately investigated and tried, and even fewer have resulted in appropriate sanctions being imposed. These few exceptions have been achieved thanks to Herculean efforts by the victims (usually supported by church or human rights networks), who have maintained constant pressure on the justice system to complete criminal trials, often at considerable risk to their own safety.

Over recent years, victims’ associations, human rights activists, prosecutors, lawyers and judges involved in such trials have suffered continual harassment in connection with their work. This has included physical attacks, death threats, intimidation, surveillance, break-ins and telephone intervention, as well as robbery and the destruction of key information. It is believed that the perpetrators of these acts are clandestine groups associated with military regimes of the past.

In summary, while governments have made progress in implementing some of the truth commission’s recommendations, impunity for past human rights crimes remains systemic and widespread.
The persistence of impunity is having a profoundly limiting effect on Guatemala’s consolidation of democracy and the establishment of the rule of law.

Government indifference to impunity is an open wound for thousands of families who suffered state brutality during the war. In many rural communities victims and victimisers continue to live side by side (such as in María Mejía’s case), which has a destructive influence on such communities and continues to retard reconciliation at all levels.

In addition, the failure of the justice system to try to punish those responsible for even the most heinous of crimes—genocide, for example—communicates a message to Guatemalan society as a whole about the irrelevance of the rule of law.

The UN Special Rapporteur on Judicial Independence, Param Coomaraswamy, made the following observation in his 2000 report on Guatemala:

‘… impunity is a cancer; if not arrested and excised it will slowly but surely destabilise society. Disenchanted citizens will lose confidence, if they have not already, in the government, and resort to taking justice into their own hands.’

The increasing levels of conflict and violence in Guatemala today, and the emergence in recent years of lynching as a popular response to crime, bears out the prediction of Coomaraswamy.

Government indifference to citizens’ demands for justice has led many to file petitions with the Inter-American Human Rights System. Via these cases, petitioners seek the mediation of their demands with the Guatemalan state, and in the event that the state fails to comply with the recommendations of the Inter-American Commission or the terms of a settlement, the case may be referred to the Inter-American Human Rights Court.

To date, this court has handed down ten judgments against the state of Guatemala, the majority of which involve forced disappearances, extrajudicial executions, torture, and, for the first time in 2004, one of the hundreds of massacres committed against the Mayan people.

While former governments have been reluctant to co-operate with the Inter-American Commission, and have actively denied responsibility before the court, since assuming power in January 2004, President Óscar Berger Perdomo has implemented a more progressive approach. This includes recognising state responsibility for human rights crimes committed by the armed forces during the war and signing ‘friendly settlements’ with families of victims, the terms of which typically include a commitment to begin criminal investigations, compensation, public apologies and measures to dignify the memory of the victim. It was in compliance with one such ‘friendly settlement’ with the family of María Mejía that the event at Sacapulas took place in August.

The ability of the Berger government to tackle the complex phenomenon of impunity in order to comply with its commitments in these agreements—and its obligations to Guatemalan society as a whole—remains to be seen. Meanwhile, the banner with the stark black lettering continues to reflect the sentiments felt by thousands of Guatemalans today. 

Lucy Turner is a Melbourne lawyer who has been working with victims of human rights abuse in Guatemala since September 2003.


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