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Human Rights Developments
Nearly two years after the signing of the final peace accord between the government of President Alvaro Arzú and the Guatemalan National Revolutionary Union (Unión Revolucionaria Nacional Guatemalteca, URNG), hopes for an end to impunity and greater respect for human rights were overshadowed by the assassination of a senior human rights figure and the government’s poor handling of the murder investigation. Moreover, the June 1998 human rights report by the Mission the United Nations for Guatemala (Misión de las Naciones Unidas en Guatemala, MINUGUA) — installed in late 1994 to oversee implementation of a human rights agreement between the parties to the conflict — revealed an increase in extrajudicial executions and torture. On a more optimistic note, however, the MINUGUA report found a decline in violations of the right to liberty, due process, and freedom of association.

The tragic murder of Bishop Juan José Gerardi, one of Latin America’s most prominent human rights figures, on April 26, served as a reminder that Guatemala had not yet escaped its past. The resolution of the bishop’s killing presented a challenge to the government to demonstrate the seriousness with which it would pursue judicial reform and combat impunity; the results, at this writing, were extremely disheartening. Apart from the Gerardi case, most of the victims of grave human rights abuses were poor and often suspected of criminal activities.

Congress approved several long delayed constitutional reforms agreed to as part of the peace accord in October, including a formal end to the military’s constitutional role in internal security. The reforms did allow, however, a temporary role for the military in law enforcement for limited periods and under civilian control. Meanwhile, the desperately needed enactment of a new Minor’s Code was put off until the year 2000.

The continued authority of Governmental Decree ( acuerdo gubernamental ) No. 90-96, authorizing military involvement in the maintenance of internal security, contradicted both the letter and the spirit of the commitments made in the peace accords to place law enforcement entirely under civilian control. MINUGUA’s June 1998 report indicated that the combined military and police forces permitted under the decree did not reduce crime and their actions at times violated human rights. When the decree was issued in 1996 the government stated that the army would be used only to support police officers while the new National Civilian Police (Policía Nacional Civil, PNC) was being formed. However, the PNC became operational in 1998 without any end to the use of joint military-police patrols. And although the police were nominally in command of the joint patrols, both military and police sources agreed that the army truly controlled and numerically dominated the patrols.

The military also continued to play a central role in crime control through the Presidential General Staff (Estado Mayor Presidencial, EMP), an intelligence unit with a history of egregious human rights violations. In 1996, the “Archivo,” the clandestine intelligence branch located within the EMP, was formally dissolved and replaced by the Center of Strategic Analysis and the Anti-Kidnapping Command or Crisis Committee. The civilian-directed center provided the president with weekly reports of political, economic, and intelligence analysis. While its director was a civilian, the second and third posts were filled by army officers.

In contrast, the Anti-Kidnapping Command, whose existence the government continued to deny, was divided into three parts: intelligence gathering, criminal investigations, and operations. The intelligence component continued to use the network of informants that was set up as part of the counterinsurgency strategy. MINUGUA’s June report attributed the September 11, 1997, “disappearance” of two individuals, Ricardo II Figueroa Delgado and Issac Valdés Mayen, to government security forces.

The involvement of the Anti-Kidnapping Command in combatting organized crime backfired in the courts, which often rejected evidence it collected as illegally obtained and in some cases overturned convictions on those grounds.

Meanwhile, the failure to curb common crime prompted many citizens to take justice into their own hands. MINUGUA calculated that between March 27, 1996, and April 1, 1998 there was an average of more than one lynching per week. Accordingto MINUGUA, most lynchings occurred in rural areas with little police presence, and in areas where the officially disbanded civil patrols had been prevalent, former patrollers often instigated the attacks.

Of equal concern were the instances of “social cleansing” reported by MINUGUA and local human rights groups. In these cases, there was more apparent premeditation than with lynchings, as in the case of La Libertad, Petén, where in January 1998 a list appeared of “persons condemned to death.” During the first three months of 1998, ten men on the list were murdered, their corpses often left with notes stating that the victims were thieves who should die. In its verification of these killings, MINUGUA discovered that they were committed by an organized group which included at least two ex-army officers.

The administration of justice in human rights-related cases showed little improvement. The prosecution of the suspected authors of the 1995 Xamán massacre finally went to trial on April 21, 1998. The trial, however, was suspended on its seventh day when the prosecution complained of a lack of impartiality of the three-judge trial court.

In August 1997 the prosecution of the intellectual authors of the assassination of anthropologist Myrna Mack experienced an important advance when Guatemala’s highest court, the Court of Constitutionality, ruled the generals and other officers accused of planning the killing were to be tried under the new Penal Code and not under the old code or in a military tribunal. This court held that all prior evidence collected under the old code and by the military judge remained valid and should serve as the foundation for the second phase of the investigation. There were also a number of setbacks in the case, however. The new judge, Isaías Figueroa, exhibited partiality in favor of the military defendants and against both Special Prosecutor Mynor Melgar and the victim’s sister, Helen Mack, prompting the special prosecutor to seek the judge’s removal. If successful this would be the twenty-fifth time a judge assigned to the case either resigned in fear or was removed.

Nor was there progress in the prosecution of a series of pending human rights cases that began with the exhumations of clandestine mass graves. The Rio Negro, Rabinal case, a 1982 massacre of one hundred children and seventy-two women, was prepared to go to trial when on May 27, 1996, the three defendant—two former civil patrollers and one soldier—applied for amnesty under a 1988 law. Their amnesty application was rejected by every lower court until February 1997, when it went to the Court of Constitutionality. That court had a maximum of fifteen days to resolve the petition, yet at this writing it had still not been resolved. The Center for Human Rights and Legal Action (CHRLA) reported that the government “lost” evidence regarding similar atrocities in the early 1980s in the villages of Plan de Sánchez and Chichupac, Rabinal. During hearings on the case in February 1997, the Inter-American Commission on Human Rights admonished the Guatemalan government to actively investigate the 1982 Plan de Sánchez massacre of 268 people. The only visible response was the disappearance from the Public Prosecutor’s Office of forensic reports and ballistic evidence. Meanwhile, in the case of the Chichupac massacre of thirty-five men in which various soldiers stood accused, the entire file of the case disappeared during 1998 with the Public Prosecutor’s Office and judiciary blaming each other. Implementation of a crucial component in the struggle against impunity, a judicial protection program, was postponed for the second consecutive year. The dire need for such a program became sadly apparent with the murder of public prosecutor Silvia Jerez on May 20. In addition to serving as the special prosecutor investigating the “disappearance” of American attorney Jennifer Harbury’s husband, Guatemalan guerrilla leader Efraín Bámaca, Jerez was also prosecuting a band of kidnappers who had killed Spanish citizen Danita Blank on December 30, 1997. In June 1998, several of these kidnappers escaped from jail. One month later, the only witness to the case, Blank’s husband, Dr. Edgar Orellana, was murdered. Meanwhile, the trial for the 1982 massacre in Dos RRs, Petén was postponed because the key witnesses—two ex-members of the Guatemalan Special Forces —refused to testify without protection.

The expansion of the death penalty to new crimes in Guatemala threatened at this writing to bring the Arzú government into direct conflict with the inter-American system for protection of human rights. The American Convention on Human Rights, ratified by Guatemala in 1978, precludes member states from extending the use of the death penalty to crimes to which it did not apply at the time of ratification. In 1995 Guatemala amended its criminal code to punish abduction with the death penalty—previously only applicable in those kidnappings that resulted in the death of the victim. Although some lower courts in 1997 commuted death sentences citing Guatemala’s obligations under the American Convention, in October 1998 two appeals courts cleared the way for the first official executions under the expanded death penalty. At the time of this writing, the cases were pending before the Supreme Court. In an apparently related move, an attorney with close ties to the military sought a ruling from the Constitutional Court challenging the legality of Guatemala’s acceptance of the compulsory jurisdiction of the Inter-American Court of Human Rights, where Guatemala would ultimately face censure for violating the American Convention through expansion of the death penalty.













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