Human Rights Watch recently returned from a research and advocacy mission to Guatemala. During the mission, Human Rights Watch representatives met with President Alfonso Portillo, government ministers, and human rights defenders, among others. This backgrounder sets out our preliminary findings, while also summarizing some of our recommendations for addressing the country's human rights problems.

Although political violence in Guatemala today is, for the most part, no longer carried out as a matter of state policy, impunity for acts of violence remains a chronic problem. Efforts to investigate and punish past abuses have made little progress, and the human rights defenders promoting them have been subject to repeated acts of intimidation. With political violence going unpunished in Guatemala, there is a serious risk that it will increase in the near future.

Threats and attacks against human rights defenders
Guatemalan human rights defenders have been subject to numerous acts of intimidation in recent months. While some of these incidents may be attributable to common crime, many others have clearly been committed in order to frighten and intimidate members of the human rights community. For example, death threats have been sent to various NGOs, including a forensic anthropology team and the Archbishop's Human Rights Office (ODHA), making reference to their work on human rights cases. The offices of some NGOs have been vandalized-and the members of others have been assaulted-by men who showed no interest in stealing valuable items that one would expect common criminals to want take with them.

Most seriously, on April 29, a member of the Rigoberta Menchú Foundation, Guillermo Ovalle de León, was shot to death in a restaurant next to the foundation's Guatemala City office. As foundation members pointed out to HRW, given the small size of the restaurant, it seems an unlikely place to stage an armed robbery. In July, two men assaulted one of the foundation's lawyers in front of the same office. The lawyer told HRW that the assailants had held her in a stranglehold and insulted her, but did not take the laptop computer that she was carrying at the time.

The existence of clandestine groups
HRW found a widespread consensus among government officials, human rights defenders, journalists, foreign diplomats and international observers that these acts of intimidation were being carried out by clandestine groups with possible links to both public security forces and organized crime. This conclusion is based largely on the fact that the perpetrators have revealed themselves, in their threats and in their actions, to be in possession of the sort of detailed information regarding the identities and routines of their victims that has traditionally been the domain of military intelligence. A written threat directed at a team of forensic anthropologists included the names of people who had not participated in exhumations since the mid-1990s, suggesting that the perpetrators had either been collecting information for several years-or at least had access to an institution that had collected it in the past.

Many believe that the attacks are aimed at discouraging efforts that are currently underway to investigate and prosecute past human rights abuses. Whatever the actual motive, they have certainly had this impact, forcing members of the targeted organizations to take precautionary measures-including leaving the country-that have undermined their work on human rights cases.

The government's response
The Portillo administration has publicly recognized the existence of clandestine groups and their possible link to attacks on human rights groups. It arranged a series of meetings between a special "Security Cabinet" (consisting of the government's top ministers and led by the Vice President) and representatives of the NGOs that have been subject to harassment. These talks did not produce any concrete results, however, and several NGO representatives broke them off, arguing that the government was not taking any serious steps to investigate and disarticulate the clandestine groups.

The responsibility for investigating and prosecuting the threats and attacks lies primarily with the Attorney General, who has named a special prosecutor, Tatiana Morales, to handle these cases. Morales is a highly respected prosecutor and appears to be fully committed to the task. However, the resources at her disposal are minimal. Unless she is provided a significantly greater budget and more investigative personnel, it is unlikely that she will make substantial progress on the large number of cases assigned to her.

It is also unlikely that the special prosecutor will make progress on these cases without the active cooperation of other governmental institutions. Given the widespread consensus that the clandestine groups have links to the army and the national police, it will be especially important that these institutions cooperate actively with the investigation.

HRW called on the Attorney General's Office to devote greater resources to the work of the special prosecutor investigating these cases. We also called on President Portillo to be more forceful in publicly denouncing attacks on human rights defenders and to instruct all public functionaries under his authority to cooperate with investigations.

A proposal for international cooperation
One potential way to bolster the special prosecutor's work on these cases would be to call on international law enforcement experts and jurists to break the logjam by carrying out, in collaboration with national authorities, investigations into the acts of intimidation and the existence of clandestine groups. Such a commission or task force could be created through an agreement between the Guatemalan government and the United Nations, like the one that established the "Grupo Conjunto" (Joint Group), which carried out a similar probe in El Salvador in 1994.

HRW discussed this possibility directly with President Portillo and members of his cabinet, as well as with the head of the United Nations Verification Mission in Guatemala (MINUGUA), representatives of foreign diplomatic missions, and members of civil society. Our international interlocutors stressed that in order to gain the support of the international community, there would have to be a clear signal that the Guatemalan government was willing to provide such a task force with the widest possible authority and to commit clearly to following up the group's recommendations and prosecuting those identified as responsible for abuses.

Major Human Rights Cases
HRW is also deeply troubled by the on-going failure of the Guatemalan state to prosecute past human rights abuses. In 1999, the UN-sponsored Historical Clarification Commission determined that over 200,000 people had been killed during the country's armed conflict, most through extrajudicial executions and "acts of genocide." Nonetheless, only a small number of these cases have been addressed by the Guatemalan justice system. And their progress has been thwarted at every turn by a variety of factors, including the intimidation of witnesses and justice officials, the abusive use of dilatory measures by defense attorneys, and the failure of the army and other state institutions to cooperate with investigations.

Government and military officials unanimously assured HRW that they would allow the justice system to do its work on these cases, but virtually everyone else with whom we met expressed deep skepticism that cases could advance against powerful figures such as Efraín Ríos Montt, a former head of state and the current President of Congress. In that sense, these cases are the test by which the strength and independence of the judiciary-which was severely debilitated under the military regimes of the 1970s and 1980s-will be measured. If the Guatemalan justice system cannot investigate the most serious atrocities committed in the country's recent history, there is little reason to expect that it will be able to deter political violence in the future.

The cases
Among the cases that HRW has been monitoring are the following:

· Genocide. Twenty-one indigenous communities affiliated with the Association for Justice and Reconciliation (AJR), and legally representing by the Center for Human Rights Legal Action (CALDH), are currently pressing charges against the three-member Military High Command of President Romeo Lucas García, as well as against the Junta Members and Military High Command of President Efraín Ríos Montt. Both cases charge war crimes and crimes against humanity, including genocide, committed in the early 1980s. A special prosecutor within the Attorney General's Office, Mario Leal, opened formal investigations into the two cases in 2000 and 2001, respectively. The special prosecutor has taken testimony from over a hundred eyewitnesses and obtained detailed exhumation reports from forensic anthropologists. He is currently in the process of obtaining expert analyses from scholars who have studied the armed conflict, and will also need to obtain information on military command structures and participation of the accused. Prosecutor Leal told HRW that he hopes to conclude the preliminary investigation by early 2003. Given the magnitude of the alleged crimes, and the prominence of the accused, these cases, more than any others, could determine whether the Guatemalan judiciary is ready to bring an end to the climate of impunity that has prevailed since the height of the armed conflict.

· The Myrna Mack murder. The material author of the 1990 killing of anthropologist Myrna Mack, Noel de Jesús Beteta, was convicted of murder in 1993, but the prosecution of the army officers who allegedly ordered the Mack killing has been dragged out for over a decade by the defense's dilatory legal tactics. Although a trial date has been set for September 3, defense attorneys are currently seeking to postpone or debilitate the case through highly dubious legal appeals.

· The Xaman massacre. The conviction of soldiers responsible for a 1995 massacre, in which eleven people were killed, was thrown out by the Supreme Court on the grounds that the trial court had committed procedural errors. Although a new trial has been ordered, the key evidence in the case has been lost or tainted.

· The Dos Erres massacre. Defense attorneys have managed to indefinitely postpone a trial in this case, which involves the killing of over 160 people in 1982, by filing dozens of dilatory motions. Nearly all of these motions have been rejected by the court as being "notoriously unfounded."

· The Bishop Gerardi murder. Four people were convicted last year for the 1998 killing of Bishop Juan Gerardi Conedera, but an appeal set to be heard in coming weeks could reverse the trial court's ruling. Lawyers from the Archbishop's Human Rights Office (which is party to the prosecution in the case) have raised serious questions about the impartiality of the judges who will review the appeal.

The challenge for the Attorney General's Office
The responsibility for making progress on these cases lies primarily with the Attorney General's Office. HRW met with the office's top prosecutors who explained how their work on these and other cases has been severely handicapped by the meager budget allotted to the office by Congress each year.

HRW fully agrees that the Attorney General's Office deserves a significantly larger budget given both the importance and the difficulty of its work. However, in the meeting with prosecutors, we also insisted that the current budget shortage should not be used as an excuse for allowing important cases to languish. And we urged them to concentrate their limited resources on priority cases involving major human rights violations.

The role of other government institutions
Other state institutions share some of the blame for the lack of progress on human rights cases. The Guatemalan Congress has failed to provide the Attorney General's Office with the resources it needs to function. The courts (including the Supreme and Constitutional Courts) have routinely failed to resolve judicial appeals and motions in an expeditious manner and thus allowed defense attorneys to engage in abusively dilatory legal maneuvering. The police have failed to provide adequate protective measures to witnesses and officials involved in sensitive cases. And, according to prosecutors, the army has failed to cooperate fully with investigations into abuses committed by current or former members.

President Portillo took an important step toward curbing impunity when he recognized the responsibility of the Guatemalan state for human rights violations in cases that had been brought before the Inter-American Commission on Human Rights. HRW urged him now to recognize the importance of the cases working their way through Guatemalan courts and to instruct all the government functionaries within the executive branch to cooperate fully with prosecutors working on these cases.

Proposed Compensation of Former Civil Patrollers
HRW was also concerned about a proposed project to provide compensation to former members of the Civil Self-Defense Patrols (Patrullas de Autodefensa Civil, or PAC), civilian militias that were responsible for widespread and egregious human rights violations in the 1980s. In July, former PAC members occupied a national airport and took civilians hostage in the department of Petén, demanding monetary compensation from the government. President Portillo responded to their actions by publicly extolling them as national "heroes" and announcing his government's intention to meet their demands. In the following weeks, associations of former PACs began forming throughout the country, drawing up lists of members who would benefit from the proposed government program.

HRW believes that any program of collective compensation of the PACs as a group would be entirely unacceptable, given that they were an integral part of a counterinsurgency strategy that entailed massive human rights violations, including massacres and acts of genocide. We raised our objections directly with President Portillo and with his Secretary for Strategic Analysis, Edgar Gutiérrez. Both the President and Mr. Gutiérrez assured us that they would not seek monetary compensation for former PAC members. Instead, they planned now to launch a development project that would be aimed more broadly at communities affected by the armed conflict and would equally benefit both members and non-members of the PAC associations.

HRW welcomed this commitment, but it stressed the importance of making sure that any such program could not be misconstrued as a form of compensation to former PAC members, nor contribute in any way to the resurgence of these paramilitary structures in the countryside.

The Role of the U.S. Government
The U.S. government is currently providing assistance-through USAID-to local efforts to investigate and prosecute past abuses, supporting the work of forensic teams exhuming clandestine cemeteries, as well as NGOs involved in human rights prosecutions. During her recently ended term in Guatemala, Ambassador Prudence Bushnell intervened with the government on several occasions to press for the increased protection of human rights defenders.

Since 1990, the U.S. Congress has maintained a ban on International Military Education and Training (IMET) and Foreign Military Financing (FMF) to Guatemala. The ban was modified after the peace accords were signed to permit training in expanded-IMET courses in the specific areas of civilian control over the military, military justice reform and respect for human rights. According to embassy sources, in the past year, non-lethal training has been provided to the counter-narcotics units within the national police force, U.S. and Guatemalan military doctors have provided medical clinics in military bases, and U.S. army lawyers have participated a military justice project aimed at reforming Guatemala's military code.

In recent months, the U.S. State Department has revoked the visas of former top-ranking military officers, including former general Francisco Ortega Menaldo, who led the military intelligence unit, known as the "D-2" (and formerly known as the "G-2"), that has been implicated in numerous human rights violations. These visas were revoked under a section of the law that authorizes action against people known to have allowed or conspired in the trafficking of illegal narcotics.

HRW urges the U.S. government to continue its support of Guatemala's human rights community, to retain its restrictions on military assistance to the Guatemala army, and to press the Guatemalan government to comply with peace accord provisions that would subject the military to greater civilian control.

Other Issues
HRW addressed several other issues in its meetings with government officials, including the following:

· The death penalty. HRW welcomed President Portillo's recent announcement that he would suspend the application of the death penalty during his presidency. We also urged him to push Congress to pass legislation to abolishing the death penalty.

· The International Criminal Court. HRW urged Congress to accede to the Rome Statute establishing the ICC.

· The Mack case before the Inter-American Court of Human Rights. HRW urged the Guatemalan government to discontinue its use of dilatory tactics to delay the Inter-American Court's examination of the Mack case.

· MINUGUA. HRW discussed with government officials and foreign diplomats the possibility of extending the mandate of the United Nations verification mission (set to expire in late 2003). Given the current climate of insecurity in Guatemala, and the weakness of the state institutions charged with curbing political violence, the continued presence of international monitors may be necessary to prevent further deterioration in the country's human rights situation.