Mitzi Bolaos November 19, 2008 Seminar: Latin American Constitutionalism Final Paper The Guatemalan Constitution and

the Inter-American Court: A Safety Net Some argue that a constitution is only a symbolic expression of the ideals of a society, and when we take an in depth look at Guatemala, this argument seems to have some degree of legitimacy. Guatemalas authority figures, particularly the national police force, systematically commit human rights violations, all of which are also constitutional violations, on a regular basis. Over a decade after the end of Guatemalas vicious civil war, impunity remains the norm for human rights violators. Not only has Guatemala not prosecuted those responsible for the atrocious violations committed during the civil war of 1960-1996, but violations being committed today by Guatemalas law enforcement agencies go unpunished as well. Particularly disturbing are the unpunished violations committed against children and the campaign of social cleansing that is taking place. One avenue of recourse for Guatemalans is the Inter-American Court system, as Guatemalas Constitutional Court has proven itself to be ineffective. Constitutions, intended to strengthen and unify a community, embody hope for the future of a nation, as well as the memories of mistakes that should not be repeated.1 Nevertheless, a constitution may also be seen as merely a legalistic opium for the masses,2 a means of making people feel that at least they have something written on a piece of paper to protect them, even if only in theory. A constitution may also be seen as a measuring rod for the progress of a country, or as an inspiration for the attainment of a goal. To this end, constitutions are no longer a solid source of substantive law that must be followed, and they

Duchacek, Ivo D. National Constitutions: A Functional Approach. Comparative Politics, Vol. 1, No. 1 (Oct., 1968), pp. 91-102, at 91-95. 2 Id. at 98
1

Page 1 of 21

are neither the core of political systems, nor the culminating point, but only one of the stepping stones towards an ultimate goal.3 There is an anomaly regarding constitutions throughout Latin America, and Guatemala is no exception. On the one hand, the importance of a constitution is seen through the constant writing and revising of the instruments, while at the same time, disregard for constitutional mandates proliferates throughout the region. With this constant writing, there remains hope that a constitution curing the evils of society will one day be born.4 The existence of a constitution is not a guarantee of rights, although it may be a good starting point. The bloodiest years of the civil war in Guatemala were 1980-1983. In 1985, the Constitution was adopted, a symbol for moving beyond those atrocious years and of hope for a better future, even though that future is one that is yet to be found. Constitutions seem to be an assertion of ideal objectives, a guide, rather than a set of fundamental laws that must be followed.5 The Guatemalan Constitution, known as the Political Constitution of the Republic (PCR), was issued in May 1985, entered into force on January 14, 1986 and was reformed in 1993. The Constitution establishes a Human Rights Ombudsperson and a Constitutional Court to monitor compliance with the Constitution. The Ombudsperson presents an annual report to the Presidential Human Rights Commission, known as COPREDEH. There is also a Victims Office; however, few resources are available to it.6 Constitutional law in Guatemala is composed of the PCR and the Law on Constitutional Protection and Actions (Ley de Amparo, Exhibicion Personal y de Constitucionalidad). This law provides a detailed regulation of the constitutional procedures, enforcement mechanisms, and their conditions of admissibility and areas of competence. The Constitutional Court may hear cases dealing with the unconstitutionality of laws, either in concrete cases or in general, and may hear cases

Id. at 102 Mecham, J. Lloyd. Latin American Constitutions: Nominal and Real. The Journal of Politics, Vol. 21, No. 2 (May, 1959), pp. 258-275, at 258. 5 Id. at 266. 6 Rivera, Claudia and Arturo Echeverria, et. al. Human Rights Violations in Guatemala. World Organisation Against Torture. (Nov. 2006), pp. 21.
3 4

Page 2 of 21

regarding the protection of individual constitutional rights through the writs of habeas corpus and amparo.7 The opening Article of the PCR declares that the State is organized for the protection of the person and the family, while Article 2 guarantees life, liberty, justice, security, peace and ones personal development. Articles 263 and 265 of the PCR deal with writs of habeas corpus, for the guarantee of individual freedom, and writs of amparo8, for the guarantee of all fundamental rights, free from arbitrary acts of government. The PCR reaches beyond its own text and states in Article 44 that the rights and guarantees that have been established in the Constitution do not exclude others that, although not expressly mentioned, are inherent to the human person. Unfortunately, there are several discrepancies between the language of the PCR and the manner in which it is interpreted by the judicial system. For example, Article 46 of the Constitution establishes that in regards to human rights, treaties and conventions accepted and ratified by Guatemala have pre-eminence over internal law. Guatemala has ratified a number of human rights treaties, but the Constitutional Court has ruled that international treaties do not prevail over the Constitution and that treaties do not constitute a standard for determining unconstitutionality. Despite Article 46 of the Constitution, the Constitutional Court has rejected claims based on violations of international human rights norms.9 Nevertheless, the Constitutional Court has ruled that if there is a discrepancy between a human rights treaty and a constitutional norm, the norm that should prevail is the one that recognizes more rights and improves benefits for Guatemalans. Luckily, the PCR is to be looked upon as a body of minimum rights, subject to improvement and expansion, rather than an exhaustive listing of rights.10 This is a great aspect, yet does not offer much hope as even those rights that are explicitly guaranteed in the document are routinely violated.

Rodriguez, Ana Cristina. Guide to Legal Research in Guatemala. July 2006. http://www.nyulawglobal.org. 8 The word amparo literally means protection or shelter. Legally speaking, it is found mostly in Latin America and is intended to protect all rights other than physical liberty, which is protected by habeas corpus. It may be invoked by any person who believes that his constitutionally protected rights have been violated. 9 Rivera, Claudia and Arturo Echeverria, et. al., supra, at 28. 10 Rodriguez, Ana Cristina, supra.
7

Page 3 of 21

Impunity is one of the biggest problems in Guatemala, not only for crimes committed during the gruesome 36-year civil war, but for crimes committed in the present day. After the 1985 constitution was approved, the Patrullas de Autodefensa Civil (PACs),11 or Civil Self Defense Patrols, responsible for a large portion of the violence, were legally disbanded. Article 34 of the Constitution addresses this specifically and states that no one is obliged to take part in self-defense groups, or similar groups. After this, the PACs were then renamed Comits Voluntarios de Defensa Civil (CVDCs), or Voluntary Civil Defense Committees. With the end of the war in 1996, many of these groups were demobilized, yet several remain in certain regions of the country, continuing to commit crimes.12 Engaging in disappearances and forming death squads were the perfect solution for the State in order to disguise its official involvement in the atrocities during the war and avoid responsibility in the international community.13 Although these practices presumably ended with the war, it seems Guatemalans are currently living in a similar situation. Today, disappearances and death squads, usually commanded by the National Police or people working for them, have been resulted to in order to deal with societys undesirables. A report published by Guatemalas Truth Commission,14 which was charged with investigating and unveiling the truth concerning the human rights violations committed during the civil war, indicates that 93% of the violations during the conflict were attributable to State and paramilitary actors. The report also indicates that Guatemalas response to the tragedies that occurred during the civil war plays an important role in the future of the country and of the people, nearly all of whom have suffered in some way due to the war. The State publicly acknowledged its responsibility for the human rights violations committed and apologized for
The government formed local Civilian Defense Patrols (PACs) as a means to keep an eye on any suspected guerrilla activity in every corner of the country. This was also a means of turning neighbors against each other and creating fear and terror. Participation was in voluntary, in theory, but in practice, men had no choice but to join either the PACs or be considered a guerrilla and consequently killed. It is estimated that at times the PACs included up to one million men. 12 Rivera, Claudia and Arturo Echeverria, et. al., supra, at 14. 13 Roht-Arriaza , Naomi. State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law. California Law Review, Vol. 78, No. 2 (Mar., 1990), pp. 449-513, at 457. 14 The complete name for Guatemalas Truth Commission is The Agreement on the Establishment of the Comisin to Clariify Past Human Rights Violations and Acts of Violence that have Caused the Guatemalan Population to Suffer.
11

Page 4 of 21

these violations. However, past violations have not been prosecuted and have barely been investigated.15 This has set the stage for the lack of investigations and prosecutions we see today. The refusal to even investigate and allow the truth to be known about past events denies the victims families the vindication and closure they deserve. By not addressing the crimes of the past, a culture of impunity has been and continues to be fostered in Guatemala. Investigating and making reparations for the past is the foundation that should be laid so that Guatemala may then begin to build a future where rights are guaranteed and violators are punished. The truth commission documented 626 massacres that took place between 1960 and 1996. Of these, only two cases have been successfully prosecuted in Guatemalan courts. A high price has been paid in the handful of other convictions obtained in human rights cases. The case of the assassination of anthropologist Myrna Mack in 1990 serves as an example. It took over a decade to convict the army colonel responsible. During that time a police investigator was murdered, and two other investigators and three witnesses received threats and had to flee the country, while the convicted colonel escaped police custody and has not served his sentence.16 This type of occurrence is common during human rights trials and is one of the reasons why so few cases are ever launched against violators. To many, it is simply not worth it. Another hindrance to the investigation and prosecution of human rights violations that occurred during the civil war has been the application of the Law of National Reconciliation. The Constitutional Court has interpreted this Law as placing a procedural hurdle on claims regarding past human rights violations, requiring special proceedings to be held before a case can be heard by the Constitutional Court.17 There are several possible explanations for the Courts hesitance in hearing these cases, including a reluctance to open old wounds and a desire to move on and forget the past. This, however, is not conducive to healing old wounds, building confidence in the State as a guarantor and protector of rights, or of moving forward.
Report on the Situation of Human Rights in Guatemala, Inter-Am. C. H. R., OEA/Ser.L/II.111, Doc. 21 rev. (2001). 16 Guatemala: Country Summary. Human Rights Watch. (Jan. 2008). www.hrw.org. 17 Rivera, Claudia and Arturo Echeverria, et. al., supra, at 28.
15

Page 5 of 21

Corruption within the court system, bribes, and fear of the State are also possible explanations for the Courts hesitance. Another obstacle for prosecution of those who committed crimes during the civil war is Article 156 of the Constitution, which provides that the illegality of an order or command from an authority must be demonstrated in order to prosecute a subordinate official. This allows for perpetrators to justify their actions as simply following orders from above. This Article, however, has been interpreted to an extreme, as the clear illegality of murder is inescapable. In 2005 Spains Constitutional Court ruled that under the principle of universal jurisdiction Spanish courts could try Guatemalan individuals for the crime of genocide.18 In 2006, a Spanish judge issued international arrest warrants for eight ex-military Guatemalans and the Spanish government requested the extradition of these individuals. In December 2007 the Guatemalan Constitutional Court declared that Spain had no jurisdiction over the Guatemalans in question. It has been argued that the Guatemalan Constitutional Court verdict contains arbitrary legal jargon that is not based on the law,19 as the concept of universal jurisdiction was not even addressed in the Courts opinion. The Court characterized the crimes committed by the ex-militaries as political crimes rather than crimes of genocide. Instead of strengthening the justice and democracy systems in the country, they [Guatemalan judicial system] are contributing to the consolidation of the largest problem in Guatemala impunity.20 One of the ex-military captains responsible for planning, ordering, and participating in several massacres of indigenous people, Captain Jose Antonio Solares Gonzalez, continues to collect his pension check from the Guatemalan military at his house, despite an arrest warrant issued since 2003.21 This type of behavior is insulting to survivors
The massacres that occurred during this time have been labeled genocide as they targeted several indigenous populations in their entirety. The massacres included men, women, and children. The women were often raped several times before being killed and sometimes children were taken as pseudo-slaves. Many were buried alive in mass graves. 19 Fonseca, Martha. Guatemala: Constitutional Court Verdict Exemplifies Impunity. 23 January 2008. http://upsidedownworld.org. 20 Id. The Spanish judge referred to in this case has declared that he will continue to investigate the case and that the Guatemalan judgment has no effect on the international arrest warrants or on the Spanish courts universal jurisdiction over the crime of genocide. 21 Al Nakba, Thaddeus. Guatemala: Rio Negro Survivors Identify Executioners. 7 May 2008. http://upsidedownworld.org. Five Civil Patrollers acting under Solares were convicted for one of the
18

Page 6 of 21

and to the victims families, as it victimizes them all over again. How can one trust his government when the perpetrators of the most gruesome crimes, possibly committed against your own loved ones, live in impunity in your own country? Civil insecurity is a serious issue faced by Guatemalans, as the average number of violent deaths per day averages 14, and human rights defenders take serious risks every day as they perform their work. This reflects the general deterioration of the rule of law in Guatemala. Threats against human rights workers, once only received by phone or letter, are now being made in person, and perpetrators do not even bother to conceal their identities. Burglaries of human rights organizations offices and the theft of valuable information is a common occurrence. Impunity is enjoyed by those responsible for these attacks, as investigations are rarely, if ever, conducted. Furthermore, criminal charges are often brought against human rights organizations for any disorder caused during their organized demonstrations. In this way, human rights defenders are criminally prosecuted for their work by the State. COPREDEH has a specific unit for the protection of human rights defenders, but it has been unable to prevent these types of attacks.22 Although Guatemalas civil war ended over ten years ago, the environment of impunity that protected those in power during the war is still present today. The main issue is Guatemalas weak and corrupt law enforcement.23 The Guatemalan Human Rights Ombudspersons Office estimates that convictions are only obtained in approximately 6% of all criminal cases, and that rate drops to less than 3% in cases involving the murders of women and children.24 The killing of witnesses is also a major problem, as well as witnesses refusing to testify for fear of their lives.25 In 2006, the National Civilian Police (PNC) Office of Professional Responsibility reported that it had investigated 37 accusations of killings involving PNC personnel.26 Besides that 37 is a shocking number when compared to the

massacres at Rio Negro. They will each serve 30 years in prison. However, they carried out the orders of the military chain of command that today enjoys impunity. 22 Rivera, Claudia and Arturo Echeverria, et. al., supra, at 23-24. 23 Guatemala: Country Summary. Human Rights Watch. (Jan. 2008). www.hrw.org. 24 Id. 25 Guatemala: Country Reports on Human Rights Practices. United States Department of State, Bureau of Democracy, Human Rights, and Labor. (Mar. 2007). http://www.state.gov. 26 Id.

Page 7 of 21

hundreds of accusations made, most of these investigations are merely a way to silence those who protest the violations. There exist private, secretive, and illegally armed networks or organizations popularly known as the clandestine groups that the authorities are either incapable of taming, or simply prefer not to control. These groups have links to both organized crime and government officials, which allows for access to valuable resources, both economic and political. The Guatemalan justice system has so far proven no match for this powerful and dangerous threat to the rule of law.27 Perhaps the State feels that these groups have society under control and so in essence are doing the State a favor. So long as the groups are on the States side, there is no need to stop them. The rule of law has become so deteriorated that the country now faces the problem of public lynching, committed mostly against those suspected of committing crimes in a particular community. This practice, common mostly in the interior of the country, is a response by Guatemalans who are fed up with crime and an ineffective justice system and decide to take the law into their own hands.28 Even minors, as young as 14 years of age, have fallen victim to this problem.29 This type of vigilantism is reminiscent of the civilian patrols controlled by the army, responsible for so many of the deaths during the civil war. This is another aspect of war time that Guatemala cannot afford to fall back into. Article 12 of the Constitution states: The Defense of ones person and ones rights is inviolable. No one may be sentenced or deprived of his/her rights without having been charged, heard, and convicted in a lawful trial before a competent and previously established judge or tribunal. Nevertheless, corruption, ineffectiveness and manipulation of the judiciary plague the country. Fair and timely trials are rare and the majority of serious crimes are neither investigated nor punished. Under Guatemalan law, the prosecutor has three months to file the case or seek a formal extension of the detention period. Even so, prisoners are often

Guatemala: Country Summary. Human Rights Watch. (Jan. 2008). www.hrw.org. Id. 29 Rivera, Claudia and Arturo Echeverria, et. al., supra, at 15. As an example, in May 2005, in the town of Joyabaj, Quiche, two boys, ages 14 and 15, were reported beaten, lynched, and burned.
27 28

Page 8 of 21

detained for much longer periods without being charged, sometimes even for years. Some prisoners are even detained after completing their sentences because of paperwork failures.30 Article 6 of the Constitution states: No one may be detained or arrested except for a crime or misdemeanor and by virtue of a warrant issued in accordance with the law by a competent judicial authority. Exceptions are made for those caught in flagrant delicto or in the act of committing a misdemeanor. Detained persons must be brought before a competent judicial authority within a period not exceeding six hours and may not be subject to any other authority. The official or agent of authority that infringes the provisions of this Article will be punished according to the law, and official courts will initiate the appropriate procedure. Although it cannot be said that there exists an official state policy of systematic human rights violations, the States inaction in confronting this problem and the States inability to guarantee that all citizens enjoy their human rights speak for itself. There is convincing evidence that members of the security forces take part in extrajudicial executions, and do so with impunity. Often times, when a body showing signs of torture appears, the Public Prosecutors Office will simply assert that the incident is gang related and will hastily close the case, even when there exists strong evidence against a gangs relation to the crime. By not protecting its citizens rights and by bestowing perpetrators with impunity, Guatemala is responsible for these atrocious acts.31 Rather than taking preventive measures, the State has adopted a repressive technique to battle the civil insecurity and crime that plagues the nation, a technique that has come to be known as social cleansing. The UN Special Rapporteur on extrajudicial, summary, or arbitrary executions has reported that there is strong evidence that members of state security forces have engaged in acts of social cleansing. This includes the execution of gang members,

Guatemala: Country Reports on Human Rights Practices. United States Department of State, Bureau of Democracy, Human Rights, and Labor. (Mar. 2007). http://www.state.gov. 31 Rivera, Claudia and Arturo Echeverria, et. al., supra, at 38.
30

Page 9 of 21

criminal suspects, and other social undesirables.32 There are no programs for the prevention of juvenile delinquency; nevertheless, the Ministry of Governance has set forth several plans to battle crime that revolve around the persecution of young people exhibiting certain physical and socio-economic characteristics.33 The Human Rights Ombudsperson has discussed social cleaning in Guatemala on several occasions. In one report, the Human Right Ombudsperson stated that social cleansing operations were being implemented to rid the society of its undesirables. Although it did not determine that social cleansing was a state policy, it did find that police agents were involved in these acts. The victims exhibited similar characteristics. They are youth coming from lower economic backgrounds, with low levels of education, and often with some indigenous descent. For example, in 2004, Josue Israel Noj, 19 years old, was killed on the streets by gunshots fired from 3 individuals. A group of Josues friends were able to apprehend two of the shooters and take them to the authorities. The two men belonged to an agency of the National Civil Police. The weapon allegedly used to kill Josue was found on one of the men, yet the men continue to live their lives with impunity.34 Gangs, or maras, have become common in Guatemala. Youths reach out to these groups, which are usually blamed for the crime problem in the country. Membership in gangs is used as an excuse by the State to not offer opportunities for these young people. In 2005, the Patriot Party presented a law to Congress that would have legalized massive detentions of youth solely on suspicion of gang membership. Luckily, Congress rejected this Anti-Gang Law. There was a 40% increase in murders reported in 2005, most of which were committed against gang members. It would be unreasonable to blame these murders on other gang members as the characteristics of the murders are not in sync with gang crime. For example, the bodies were not found on gang territories, the bodies were found with signs of torture uncharacteristic of gangs, and the bodies are often found with anti-gang messages clearly directed toward gang members in general.35

Guatemala: Country Summary. Human Rights Watch. (Jan. 2008). www.hrw.org. Rivera, Claudia and Arturo Echeverria, et. al., supra, at 35. 34 Rivera, Claudia and Arturo Echeverria, et. al., supra, at 39. 35 Id. at 47-50.
32 33

Page 10 of 21

It is interesting to note that the major crime problem is associated with crimes committed against gang members and not crimes committed by gang members, although that is what the State would like us to believe. It seems these gangs are a refuge for the average street child whose fate would be up to the police if it were not for the protection of these gangs. Guatemala has left these children with minimal options but to join a gang, as the State does not provide these children with their basic needs. The State therefore drives these children to gangs and then punishes them harshly once they join. This is a vicious cycle that must be broken, and the only way to do so is with youth development programs, particularly education and safe homes. Social cleansing groups have arisen in different parts of the country. For example, a group called the Peoples Defenders can be found in the western part of the country and the groups mandate is to purge the area of mareros or gangsters. Another group called the City Guardians has identified itself as a group to eliminate gang members and has claimed responsibility for the deaths of several gang members. This group has handed out pamphlets claiming that they come to stop the rabies killing the dog.36 Gangs are considered a disease that is crippling the country; yet this idea is really an inverted reality. More and more gangs are surfacing as young children find themselves alone on the streets, with no family, no home, no food, and no education. These groups help each other find the basic necessities of life that the State has so miserably failed in providing them. It has been estimated that there are approximately 5,000 street children throughout the country and 3,000 of them are in Guatemala City. Increased gang recruitment has decreased the number of street children as these children then go live with older gang members. Almost 400 minors suffer violent deaths in Guatemala City a year and the street youth detained by police are often subject to abusive treatment.37 The poorest of Guatemalas society are mostly from indigenous traditions, the same groups targeted for genocide during the civil war. These same children are the ones in the gangs and it seems as though the State has found yet another excuse to rid society of them, using their membership in gangs, and their likelihood to

Rivera, Claudia and Arturo Echeverria, et. al., supra at 51-52. Guatemala: Country Reports on Human Rights Practices. United States Department of State, Bureau of Democracy, Human Rights, and Labor. (Mar. 2007). http://www.state.gov.
36 37

Page 11 of 21

commit crimes in the future, as an excuse to abuse and even kill them. It can be argued that Guatemala continues to be in a state of undeclared civil war. During the years of the civil war it was the State and the paramilitaries that committed the worst crimes, over 90% of the deaths were attributable to them, yet they excused their conduct as necessary for the protection of the nation and protection from the dangerous guerrillas. Similarly, today the National Police and the anti-gang groups working with the police and security forces commit the most heinous crimes against the street children and gang members, who are erringly considered the more dangerous of the groups. These children only wish to survive, and gangs seem to be their only hope for now, until the State decides to comply with its obligations to these youths. Article 20 of the PCR relates to minors. It states that minors who infringe the law are not accountable for their crimes and that their processing should be oriented toward an integral education for the youth. It further states that minors whose conduct violates the penal law will be processed by specialized personnel and institutions, and by no means should be imprisoned in adult penal centers.38 Despite this Article, street children are abducted, tortured, and ultimately killed by police forces rather than being rehabilitated through education and safe homes. National law enforcement agencies are not trained in dealing with the special situations of these children. The Constitution and the law provide for free compulsory education for all children up to the sixth grade, yet a primary education is something that less than half of the countrys population possesses. Less than half of the children who enter primary school finish their third year, and a little over a quarter reach beyond the sixth grade. These rates drop even lower in rural and indigenous areas. The average non-indigenous child receives an average of 4.2 years of schooling, while indigenous children receive an average of 1.3 years.39 This is what the State should focus on in order to tackle its social problems. These numbers are
38

ARTICULO 20: Menores de edad. Los menores de edad que transgredan la ley son imputables. Su tratamiento debe estar orientado hacia una educacin integral propia para la niez y la juventud. Los menores, cuya conducta viole la ley penal, sern atendidos por instituciones y personal especializado. Por ningn motivo pueden ser recluidos en centros penales o de detencin destinados para adultos. Una ley especfica regular esta materia. 39 Guatemala: Country Reports on Human Rights Practices. United States Department of State, Bureau of Democracy, Human Rights, and Labor. (Mar. 2007). http://www.state.gov.

Page 12 of 21

alarming and need to be improved as a first step to bettering the overall welfare of society. Getting these kids into schools and off of the streets should be a priority for the State. Under Article 3 of the Constitution, the State is to guarantee and protect human life from the time of conception. However, the amount of children living on the streets of Guatemala is overwhelming, and these are children whose most basic needs are not being met. In 2005, 334 children and minors under 18 were killed just in Guatemala City. Children as young as six years old have been killed because of their affiliations with gangs. They are abducted, burned with cigarettes, strangled with wire, and often stabbed. Children often go missing for months before their bodies are ultimately found. When families inquire about the whereabouts of these children they are often given a runaround until they are finally told that the children are dead and already buried under the identity XX.40 Article 11 of the Law of Integral Protection of Children and Adolescents establishes that every child has the right not to be subjected to torture or cruel, inhuman or degrading treatment. Article 76 of this law places an obligation on the State to ensure that public and private institutions assist children whose rights are threatened. This is the kind of law that we need to see implemented in Guatemala, and not solely written into the books. Education and respect for the lives of children is the key to ending gang membership, while killing off the gangs, as the State has been trying to do, only leads to their strengthening. The American Convention on Human Rights (the Convention) was adopted in 1969 and came into force in 1978. According to the preamble, the purpose of the Convention is to consolidate in this hemisphere, within the framework of democratic institutions, a system of personal liberty and social justice based on respect for the essential rights of man. The Convention created the Inter-American Court of Human Rights (the Court or the InterAmerican Court) which has competence with respect to matters relating to the fulfillment of the commitments made by the States Parties to the Convention (Article 33 of the Convention). The Convention guarantees civil and political rights, enumerated in Chapter II, but does not enumerate social, cultural, or economic rights. In regards to these latter rights, the Convention only says that States pledge to adopt measureswith a view of achieving progressivelythe full realization of the rights implicit in the economic, social, educational,
40

Rivera, Claudia and Arturo Echeverria, et. al., supra, at 52-55.

Page 13 of 21

scientific, and cultural standards set forth in the Charter of the Organization of American States (Article 26).41 Chapter II of the Convention consists of 23 articles enumerating civil and political rights, most notably, the right to life, humane treatment, personal liberty, free trial, rights of the child, and equal protection. All of these rights are similarly enumerated in the Constitution of Guatemala. Furthermore, in 2000 Guatemala ratified the first protocol to the Convention, known as the Protocol of San Salvador, or the Additional Protocol for the American Convention on Human Rights in the area of Economic, Social, and Cultural Rights. It seems that on paper Guatemala is committed to the defense of human rights, yet on the ground its citizens are not enjoying this apparent commitment. Acts of intimidation, harassment, and death threats against judges, prosecutors, complainants, witnesses, members of human rights bodies and victims and journalists organizations are prevalent and greatly affect the administration of justice in Guatemala.42 Victims and survivors of the civil war direct their complaints at the Inter-American system because, although the Public Prosecutors Office has created a unit for investigating and prosecuting past human rights violations, this unit has yet to resolve even one case. Victims of human rights violations in Guatemala have been successful before the Court, but although the State is obligated to comply with the Courts rulings, compliance is extremely slow and limited.43 The Court firstly will order the State to comply with the Convention and protect and ensure the right that was violated. The Court can then order reparations for the victim and the victims family. Reparations may be monetary compensation or may be non-monetary acts such as public commemorations. The Court can also order that certain domestic laws be revised in order to be in congruence with the Convention. It is the responsibility of COPREDEH to promote the governments human rights policy. COPREDEH also represents the government before the Inter-American Court for human rights abuses and tries to negotiate amicable settlements.44 There seems to be an
Basic Documents Pertaining to Human Rights in the Inter-American System. Secretariat of the Inter-American Court of Human Rights. San Jose, Costa Rica (2006). P. 10-11. 42 Rivera, Claudia and Arturo Echeverria, et. al., supra, at 103. 43 Id. at 63. 44 Guatemala: Country Reports on Human Rights Practices. United States Department of State, Bureau of Democracy, Human Rights, and Labor. (Mar. 2007). http://www.state.gov.
41

Page 14 of 21

apparent conflict of interest as the same body who is supposed to be defending human rights in Guatemala also defends the government when it is accused of human rights violations. There should be a clear line as to who is defending the violators and who is defending the people, and it should by no means be the same office. In the case of the Street Children (Villagran-Morales et al.) v. Guatemala the Court was called upon to determine whether Guatemala had violated Articles 1 (obligation to respect rights), 4 (right to life), 5 (right to humane treatment), 7 (right to personal liberty), 8 (right to a fair trial), 19 (rights of the child) and 25 (right to judicial protection) of the American Convention on Human Rights45 with respect to the abduction, torture and murder of Henry Giovanni Contreras (18), Federico Clemente Figueroa Tunchez (20), Julio Roberto Caal Sandoval (15) and Jovito Josue Juarez Cifuentes (17); the murder of Anstraum Villagran Morales (17); and the failure of State mechanisms to deal appropriately with the said violations and provide the victims families with access to justice. The families of these victims were given minimal, if any, information about the deaths of their relatives and several reported being afraid to go to the authorities searching for answers. When information was given, it was discovered that the police reports did not mention the signs of torture that were found on the dead bodies. The ears and tongues of the victims had been cut off and the eyes had been burned. The mutilations correspond to the treatment that the police usually use on those who inform against the security forces.46 Several witnesses reported seeing members of the State security forces with the victims before and during the abductions. Eye witnesses that had identified members of the National Police Force who had allegedly participated in the attacks were found dead and several threats were made to members of Casa Alianza.47 These members eventually had to flee the country. One witness to the attacks in this case, also a street child, reported a police officer threatening her and saying that she was good for nothing and better off dead. This is a glimpse into the attitude of the authorities towards street children. The domestic judicial
Each of these rights is also guaranteed by the Guatemalan Constitution. Case of the Street Children (Villagrn-Morales et al.) v. Guatemala. Inter-Am. Ct. H.R. Merits. Judgment of November 19, 1999. Ser. C, No. 63. PAR 159. 47 At the time of this case, Casa Alianza was handling almost 400 cases of crimes against street children and most of the perpetrators of these crimes were members of the National Police Force or other State security forces or private police agents.
45 46

Page 15 of 21

system in Guatemala has proved itself to be inadequate and ineffectual. The judge in the Villagran-Morales case issued an investigation of the murder six months after the murder had occurred. Once the investigation was under way, any evidence that tended to discover the truth was rejected, including witness testimony.48 In the Courts opinion, it is a proven fact that in Guatemala, at the time the events occurred, there was a common pattern of illegal acts perpetrated by State security agents against street children; this practice included threats, arrests, cruel, inhuman and degrading treatment and homicides as a measure to counter juvenile delinquency and vagrancy.49 The Commission argues before the Court that Guatemala not only violated the provisions of the Convention but also Article 6 of the Guatemalan Constitution, in that no report was made of the detentions and the youths were not taken before a judicial authority. The Commission further argues that, in that sense, the State also violated the victims right to file a petition for habeas corpus under Article 263 of the Guatemalan Constitution as they were held clandestinely. The bodies of these boys were eventually found abandoned in the desolate woods, where they were subject to weather and animals. This in itself is another violation as Guatemalan culture places much emphasis on the respect of the dead.50 Guatemala remained silent on most points brought up before the Court, and in one report stated that the police force did not receive training on how to deal with these children.51 Guatemala alleged that domestic remedies had not been exhausted before the case was taken to the Inter-American Court, as is required by the Convention, since the constitutional procedure of amparo remained. However, besides the fear instilled in the victims families, the processes available were clearly ineffective. The Court declared that not only did Guatemala fail in investigating the crimes, but the evidence that was available was ultimately rejected by the domestic judicial system.52 The Court decided that Guatemala had in fact violated articles 1, 4, 5, 7, 8, 19, and 25 of the American Convention. In the concurring opinion to this case, judges Canado Trindade and Abreu-Burelli state that in this case, there is the aggravating circumstance that the lives of the children were
48 49 50 51

Case of the Street Children (Villagrn-Morales et al.) v. Guatemala. Merits. PAR 65. Id. at PARs 79 and 189.

Id. at PAR 174. Id. at PAR 183. 52 Id. at PARs 207 and 230.

Page 16 of 21

already devoid of any meaning; that is, the victimized children were already deprived of creating and developing a project of life and even to seek out a meaning for their own existence.53 This gets to the root of the problem in Guatemala in regards to children. Guatemala is responsible for giving these children the basic necessities for their development, without which, the problem of street children, and the derivative problem of social cleansing, will continue with strong force. One of the recommendations made by the Guatemalan Truth Commission was that the State establish a Committee to Search for Missing Children. This committee was eventually set up in 2001 by civil society organizations, without any participation by the State. The State has refused to make the files that contain information about the whereabouts of these children available, despite that the Guatemalan Constitution provides for any person obtaining information from state files or records.54 Naomi Roht-Arriaza argues that there exists an obligation under international law to investigate and take action against those responsible for disappearances, death squad killings, and other grave human rights violations, whether those responsible are part of the current or the previous government. This is necessary in order to avoid the cycle of future violations. There is a tendency in recent international conventions to require states to investigate and prosecute, as well as offer an adequate and effective remedy. State practice and customary international law, as well as decisions of international tribunals and scholars, lead to the same conclusion.55 Investigations also establish a commitment to the rule of law, which is one of the basic pillars of a functioning democratic society. Guatemala has failed in prosecuting the human rights violators of the past, and unfortunately, it appears that the cycle is already at work. This cycle must be broken before the situation in the country continues to worsen. It is important to set an example of the past government that committed such grave human rights violations so that the situation will not repeat itself. Legitimate investigations conducted by authorized personnel are necessary as
Case of the Street Children (Villagrn-Morales et al.) v. Guatemala. Inter-Am. Ct. H.R. Merits. Judgment of November 19, 1999. Ser. C, No. 63. Joint Concurring Opinion of Judges A.A. Canado Trindade and A. Abreu-Burelli. PAR 3. 54 Case of Molina-Theissen v. Guatemala. Inter-Am. Ct. H.R. Reparations and Costs. Judgment of July 3, 2004. Ser. C, No. 108. PAR 28a. 55 Roht-Arriaza , Naomi, supra, at 449-513.
53

Page 17 of 21

accurate investigations lead to knowledge and awareness of the past. Proper investigations and protections for judges, investigators, witnesses, victims, and human rights defenders are also necessary for Guatemalan society. Also, the independence and the functions of the Human Rights Ombudsperson should be strengthened. The role of the army is another general problem, as the current purpose of the army is more to preserve internal order and defend the regime in power rather than to defend the country.56 Even though Article 244 of the Guatemalan Constitution limits the armys functions, the army still actively participates in the penitentiary system by training the National Civil Police and defining public security policy. The army is also directly involved in the prison system by providing perimeter security to the prisons and by training the prison guards. Furthermore, the army participates in criminal investigations and military personnel are often recruited for public security functions.57 This is frighteningly reminiscent of civil recruitment for the PACs. The involvement of the military in civilian life is a sign of returning to the military dominated times of the civil war. The military is not trained in handling civilian criminal investigations and should stay within its own domain. The Inter-American Court has proven to be a good safety net for Guatemalan citizens, but it should not have to come to that. The process is lengthy and most of Guatemalas citizens rather not go through the time, expense, stress, and even danger of taking a complaint to the international system. Guatemala must break the cycle of militarization and systematic oppression of the undesired sectors of society. It must break with the tradition of impunity established during the 30 years of civil war and must be careful to not allow the current situation to escalate into another full scale civil war. A good start for this would be to address the violations of the past and prosecute those responsible. Guatemalas domestic judicial system must transform into one that protects the human rights of all Guatemalans, especially children. Social cleansing has not reduced the crime rate; it is not the answer. The answer is protecting the children of Guatemala, getting them off of the streets and into schools and youth programs. The Guatemalan Constitution enumerates several rights inherent to the human person. If only this Constitution were enforced on a daily basis in Guatemala, perhaps an international safety net, such as the Inter-American Court, would not be necessary.
56 57

Mecham, J. Lloyd, supra, at 271. Rivera, Claudia and Arturo Echeverria, et. al., supra, at 58-60.

Page 18 of 21

Bibliography Al Nakba, Thaddeus. Guatemala: Rio Negro Survivors Identify Executioners. 7 May 2008. http://upsidedownworld.org. Basic Documents Pertaining to Human Rights in the Inter-American System. Secretariat of the Inter-American Court of Human Rights. San Jose, Costa Rica (2006). P. 10-11.

Page 19 of 21

Case of Molina-Theissen v. Guatemala. Inter-Am. Ct. H.R. Reparations and Costs. Judgment of July 3, 2004. Ser. C, No. 108. PAR 28a. Case of the Street Children (Villagrn-Morales et al.) v. Guatemala. Inter-Am. Ct. H.R. Merits. Judgment of November 19, 1999. Ser. C, No. 63. PAR 159. Duchacek, Ivo D. National Constitutions: A Functional Approach. Comparative Politics, Vol. 1, No. 1 (Oct., 1968), pp. 91-102. Fonseca, Martha. Guatemala: Constitutional Court Verdict Exemplifies Impunity. 23 January 2008. http://upsidedownworld.org. Guatemala: Country Reports on Human Rights Practices. United States Department of State, Bureau of Democracy, Human Rights, and Labor. (Mar. 2007). http://www.state.gov. Guatemala: Country Summary. Human Rights Watch. (Jan. 2008). www.hrw.org. Mecham, J. Lloyd. Latin American Constitutions: Nominal and Real. The Journal of Politics, Vol. 21, No. 2 (May, 1959), pp. 258-275. Report on the Situation of Human Rights in Guatemala, Inter-Am. C. H. R., OEA/Ser.L/II.111, Doc. 21 rev. (2001). Rivera, Claudia and Arturo Echeverria, et. al. Human Rights Violations in Guatemala. World Organisation Against Torture. (Nov. 2006). Rodriguez, Ana Cristina. Guide to Legal Research in Guatemala. July 2006. http://www.nyulawglobal.org.

Page 20 of 21

Roht-Arriaza , Naomi. State Responsibility to Investigate and Prosecute Grave Human Rights Violations in International Law. California Law Review, Vol. 78, No. 2 (Mar., 1990), pp. 449-513.

Page 21 of 21