HUMAN RIGHTS COMMITTEE BEGINS CONSIDERATION OF GUATEMALA'S INITIAL REPORT

26 March 1996

Press Release
HR/CT/459

HUMAN RIGHTS COMMITTEE BEGINS CONSIDERATION OF GUATEMALA'S INITIAL REPORT

19960326 Chairman of Guatemala's Presidential Human Rights Committee Says Government Committed to Addressing Violations by Security Forces

The commitment of the new Government of Guatemala to confront major human rights problems, involving impunity and the slow process of the system of justice, was stressed by Guatemalan senior officials this morning, as the Human Rights Committee began consideration of that country's initial report.

Introducing the report, the Chairman of the Presidential Human Rights Committee (COPREDEH), Vincente Arranz Sanz, said the human rights situation in the country had not been reversed in totality and concrete measures were needed to purge the military and security forces. The Government was committed to removing corrupt security officers, he stressed, adding that the continued existence of impunity, corruption and violation of human rights was sustained by elements or ex-elements of the security forces.

Also addressing the Committee, the Executive Director of COPREDEH, Dennis Alonzo Mazariegos, said the signing of the 1994 Comprehensive Agreement on Human Rights by the Government and the Unidad Revolucionaria Nacional Guatemalteca (URNG) had spelled out the human rights situation regarding armed clashes. Both parties had recognized that, while the peace process continued the rights of civilians must be protected.

Mr. Sanz added that the parties to the peace process had signed an agreement on the identity and the rights of indigenous peoples which contained explicit recognition that Guatemala was a multi-ethnic, multilingual and pluri-cultural society. Indigenous people had suffered serious rights violations, he said. Their rights had to be protected and State policies had to be altered, including constitutional reforms in that regard. He noted that on 5 March the Congress had approved the 1989 Indigenous and Tribal Peoples Convention of the International Labour Organisation (ILO) (Convention 169).

Issues raised by experts this morning included the power of military and police elements to defend their impunity, which resulted in the guilty not being punished. Clarification was also sought on the announcement last week

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by the URNG that it was suspending temporarily offensive military operations and the response of President Alvaro Arzu, who had issued instructions to the Army to cease counter-insurgency operations. It was emphasized that unless the conflict stopped, there would be no end to human rights violations in Guatemala.

Asking questions this morning were the experts from Ecuador, United Kingdom, Germany, Hungary, United States, Chile, Venezuela and Costa Rica.

The Committee will continue its consideration of the report of Guatemala on Thursday, 28 March. When it meets again at 3 p.m. today, the Committee will begin consideration of the second periodic report of Zambia.

Committee Work Programme

The Human Rights Committee met this morning to begin consideration of the initial report of Guatemala on measures taken to implement the provisions of the International Covenant on Civil and Political Rights (document CCPR/C/81/Add.7).

The report states that Guatemala recognizes that it experiences certain limitations in its respect for and observance of civil and political rights. However, it is fully determined to improve the functioning of its machinery for ensuring observance of and respect for those rights. Measures are being taken to distribute the Covenant to all Guatemalans.

Concerning derogations, the report states that the Constitution provides that rights may be suspended in case of invasion of Guatemalan territory, serious disturbance of the peace, activities against the security of the State and public disaster. It adds that, by a decree adopted on 19 February 1992, the rules of the Covenant had become part of Guatemala's internal law. Among measures taken to ensure respect for human rights, the report includes the Comprehensive Agreement on Human Rights, signed by the Government of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca (URNG), on 29 March 1994, in Mexico City.

Furthermore, there are regulations currently being considered in the Parliament designed to protect other rights guaranteed by the Covenant, it goes on. They relate to matters such as adoption, military and social service, children, domestic service and the 1989 Indigenous and Tribal Peoples Convention of the International Labour Organisation (ILO) (Convention 169), which provides for basic protection of those groups to maintain their own ways of life without being forced into assimilation.

The remedy of amparo, or habeas corpus, is available in Guatemala, the report states. It adds that on human rights matters, international instruments ratified by Guatemala take precedence over domestic law. The remedy of amparo is designed to protect individuals from threats of violation of their rights or to restore their rights if they have been violated.

According to the report, Guatemala respects and guarantees for all persons within its territory the rights recognized in the Covenant. During the period from January to December 1993, a total of 561,919 foreigners entered the country. Some foreigners have been the victims of attacks. In those cases, the civil security forces have taken action against the attackers and investigations are being conducted. The report adds that any person responsible for the violation of human rights, whoever he may be, is brought before a court for trial, including members of the National Police Force.

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In Guatemala, the right to life is protected by domestic law, the report states. Nevertheless, because of the political, social and economic crisis besetting the country, there are cases of violent death among members of various social sectors: peasants, workers, students, trade unionists, members of the professions, university and school teachers, members of the civilian and military security forces, civil servants and political-party activists. A few cases have aroused the interest of United Nations bodies and foreign governments, which want them investigated and wish to prevent similar acts from occurring in the future. The report cites some of those cases.

At present, the Government is in the best possible position to bring the armed conflict in Guatemala to an end and, thus, overcome the widespread crisis affecting the various levels of society, says the report.

Everyone has the right to freedom of thought and conscience and no restrictions exist in that regard, it goes on. Furthermore, there is complete freedom of worship, since even in the national school system the pupils receive the religious education chosen by their parents in both private and public schools. During the current year, 234 religious processions (Roman Catholic) took place in the streets of Guatemala City, not to mention those which normally take place in the interior, which tend to be more numerous. It should be noted that those public religious functions were authorized by the Departmental Governor's Office, the report adds.

In Guatemala, full freedom of expression and opinion is enjoyed, since no restrictions are ever imposed on persons who express their views through the mass media (radio, press, television), according to the report. Everyone also has the right to hold a public demonstration, provided that he complies with the pre-established legal requirements, such as requesting authorization in advance. Addressing matters related to the family, the report notes that the question of adultery is regulated by criminal law, with sole reference to the woman and not to the man, which might be considered to constitute a lack of equality of rights for women.

As regards the rights of ethnic minorities to have their own cultural life, religion and language, the report states that the Constitution protects them. A draft Indigenous Communities Act is in a second reading by the Congress. The right of the ethnic minorities to a cultural, religious and linguistic life is, thus, respected and tolerated, without any form of discrimination. "Furthermore, no conflict exists within Guatemalan society", the report concludes.

Introduction of Report

Introducing Guatemala's delegation to the Committee, JULIO ARMANDO MARTINI HERRERA, Permanent Representative of Guatemala, said his country had

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joined the ranks of democratic governments. A Presidential Human Rights Committee had been established which reflected the Government's willingness to pay attention to human rights matters.

The Chairman of the Presidential Committee, VINCENTE ARRANZ SANZ, introduced the report. He said that until 1994, Guatemala had not complied with its obligation of submitting reports. A putsch led by the then president of the country had attempted to subvert the constitutional order in 1993. Following that attempt, several positive events had taken place in Guatemala in the political, economic and social fields.

He said the initial report followed the guidelines issued by the United Nations Institute for Training and Research (UNITAR) on the preparation of such reports. According to the Constitution, the Covenant was part of Guatemalan law. He added that the report submitted had not been prepared by the Presidential Committee and in a way described an unreal country. He would talk to the Committee about the real Guatemala.

Updating events since the report's submission, he said there had been a democratic transition in his country. The transition was divided into three periods, including the current one, which had started this year and would last until 2000. In the middle of the second period (from 1991 to 1996) of that transition, a socio-political crisis had taken place. Now, Guatemala experienced a process of change, particularly concerning human rights violations. The activities of the Office of the Human Rights Procurator in that regard were of great importance. Reviewing some of those activities, he cited assistance in the repatriation of refugees and displaced persons. The legal order was being modernized and a criminal code was being put into place. Also, the United Nations Human Rights Verification Mission in Guatemala (MINUGUA) had been established, he noted.

There were still deplorable incidents of human rights violations which went unpunished, despite the Government's best intentions, he said. People's participation had grown stronger, however, mainly in electoral events and particularly of the Mayan people. There were now indigenous mayors in important regions. An accord defining Mayan identity was signed. That accord was of historic significance. Also, peace negotiations were taking place between the Government and the URNG.

The international community had supported Guatemala in strengthening the process of democratization, he said. In January, President Alvaro Arzu Irigoyen was inaugurated. He stated his readiness towards making progress to eliminate issues which had divided Guatemalans. Citizens' participation at all levels would be a reality, he said. A "chronic crisis" in the country had given rise to a feeling of scepticism among Guatemalans, and that was paralysing the country. Guatemala required major changes, and his

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administration would tackle that problem, including by fighting discrimination.

He said the Constitution reaffirmed the human person as the centre of the social order, and the State as promoter of the common good. The Constitution of Guatemala was designed to protect the human person and the family. Another characteristic was the Constitution's use of natural law. The rights and guarantees which were granted directly in the Constitution did not exclude others who were not granted explicitly in that document. Another advance was the creation of the Human Rights Commission of the Congress and the Prosecutor as protector of human rights. Human Rights treaties had primacy over domestic law. An ordinary law could be challenged in the case of conflict with human rights guaranteed under one of those treaties.

Regarding the penal system, he said the Constitution called for rehabilitation of the prisoners and a minimum standard of treatment guaranteed for the prisoners. Public employees could be punished for violations of the Constitution. Such offences were not subject to a statute of limitations. The criminal code was revised to include extrajudicial executions and disappearances. The crime of torture was also defined in the revised code. The position of military commissioner was abolished, along with military commissions themselves. General reforms were being introduced into the law on the army. Reforms had also been made in the criminal procedure code, where important changes were carried out in the investigation and prosecution of criminal action. It was hoped that the resulting establishment of the rule of law would help resolve the continued existence of impunity to prosecution.

He went on to describe recent significant actions taken by the Government. For example, the Congress had just approved the 1989 Indigenous and Tribal Peoples Convention of the ILO (Convention 169). The constitutionality of certain sections of the criminal code, which were said to be discriminatory against women, was being examined. The Congress had also initially approved the Optional Protocol of the International Covenant.

Summarizing significant events in the Guatemalan peace process, he said the URNG had initially decreed a unilateral cessation of military activities. The Government then had followed with an immediate halt to all counter- insurgency activities. He described the peace process which had followed the actions by the two parties, including the signing of the Comprehensive Agreement on Human Rights of 29 March 1994. He outlined the success of MINUGUA, the recommendations of Monica Pinto, independent expert of the Committee on the situation of human rights in Guatemala, and the progress made in reforming the police and the military.

He acknowledged that the remaining major human rights problems involved impunity and the slow process of the system of justice. The human rights situation had not been reversed in totality. Concrete measures were needed to

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purge the military and security forces. The Government was committed to removing corrupt security officers. It had also been recognized that the continued existence of impunity, corruption and violation of human rights was sustained by elements or ex-elements of the security forces.

Response to Written Questions

On written questions submitted by the Committee, Mr. ARRANZ SANZ, Chairman of the Presidential Committee, said the Office of the Procurator had a constitutional mandate. There were external auditors offices throughout the country. Also, MINUGUA performed an external auditorship role, and non- governmental organizations were also "checking up" on the current Government. The Presidential Committee had, among its functions, that of bringing together all official data concerning human rights. Also, it helped the Government in complying with human rights instruments. The Chairman of the Committee held the ranking of Secretary of State.

He said concrete steps had been taken to implement the Comprehensive Agreement on Human Rights concluded in 1994 between the Government and the URNG, and that had been recognized by MINUGUA in all its reports. Bills defining torture and forcible disappearance had become law. The Government was strengthening the security forces in a professional way. Reforms were being conducted to deal with the problem of impunity. A new criminal code had been put into action and had sought to do away with the fact that magistrates and justices were not properly trained and, thus, contributed to impunity. Action was being taken to combat impunity.

He said he was aware that members of the security forces left and joined other types of armed groups, noting that control of those groups was beginning to be imposed. There was no compulsory military service in Guatemala, only voluntary. There was a need to eliminate the suffering of civilians, he said, adding that the guerrilla activities were inflicting much of such suffering.

Continuing his delegation's response to the Committee's written questions, DENNIS ALONZO MAZARIEGOS, Executive Director of the Presidential Human Rights Committee, said the Constitution spelled out limitations which could be placed on human rights in relation to invasion or major breach of the peace. Freedom of action, rights of detention and interrogation, rights to organize, freedom of the media and the right to carry arms were among the rights affected. Actual circumstance had never resulted in the suspension of any of those rights. The Human Rights Agreement of 29 March 1994 had spelled out the situation regarding armed clashes. Both parties recognized that while the peace process continued the rights of civilians must be protected. The goal was to protect the rights, security and safety of the citizens.

Regarding an overall policy to do away with impunity, he said it was necessary to continue to strengthen the rule of law. Difficulties were

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encountered particularly in the political arena. Political institutions must be galvanized at all levels in the fight against impunity, as recommended by independent expert Monica Pinto.

Mr. ARRANZ SANZ, Chairman of the Presidential Committee, said the Government recognized the upsurge in violence and the deficiencies in public administration as it sought to enforce the law. The MINUGUA had provided invaluable support in that area in order to make mechanisms and agencies more effective and responsive to the needs of the people. The training programme for public officials had continued in an effort to make human rights an effective reality. Much had been done to ensure the protection of prosecutors, witnesses and human rights activists.

He expressed regret that human rights complaints were often lodged in the mass media and not through the mechanisms of the Government. Even when government protection was offered to some individuals, that protection had been rejected in favour of protection by international entities. The lack of faith in the Government's ability to protect them was apparent.

No civilian would be brought before a military tribunal according to a 1994 modification of the criminal code, he continued. Offences committed by miliary personnel could be tried under a civilian criminal code and by the regular courts. Military courts of instruction would, however, have to be involved in the process. The norms spelled out in military code would govern all court martial proceedings.

On the resettlement of displaced persons, a technical commission had been created to execute the accord adopted in that regard, he said. Problems of representation of displaced persons on that commission were acknowledged. A land commission had been created which had the function of locating usable farms for future resettlement. A documentation commission would monitor the code for documenting the displaced persons. Another commission on demining would address the demining of the territory to allow for resettlement of displaced persons. A commission on territorial regulation would administer the valid surveying of land involved.

The law on indigenous communities had not been enacted, he said. However, the parties in the peace process had signed an agreement on the identity and the rights of indigenous peoples. It contained explicit recognition that the nation was a multi-ethnic, multi-lingual and pluri- cultural society. Indigenous people had suffered serious rights violations. Those rights had to be protected and State policies had to be altered, including constitutional reforms in that regard. On 5 March, the Congress had approved by decree ILO Convention 169.

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Questions by Experts

JULIO PRADO VALLEJO, expert from Ecuador, expressed satisfaction with Guatemala's ratification of the Covenant and expressed the hope that it would sign the Optional Protocol. In Latin America, there was great concern over the situation of human rights in Guatemala, and it was a reason for satisfaction to have a delegation of officials directly involved with human rights matters. Guatemala was making changes in its legal system to protect human rights; however, serious violations of human rights were still going on.

He said the goodwill of the Government was important but not everything. Apparently, the will of the civil power was not enough to make the military power follow orders. Military and police elements defended their impunity, and the guilty could not be punished. How could impunity end? he asked. Goodwill was not enough. Self-defence patrols intimidated those who wanted to return to the country, and those patrols were maintained by the security forces, by the military. Therefore, there was anxiety among refugees. According to the report, it had not been made public and was not being published because an attempt was being made to change the country's legal structure. That was actually a reason to publish the report, he said. He hoped the goodwill of the Guatemalan delegation would be translated into concrete facts.

Lord JOHN MARK ALEXANDER COLVILLE, expert from United Kingdom, asked whether the percentage of the electorate which had voted in the recent election had been very low, and, if so, why. The main concern of the Committee should be that of impunity in Guatemala. He referred to reports of non-governmental organizations on the situation of human rights there and asked the delegation whether it was aware of their contents. The problem in Guatemala was that judicial proceedings were slow and, therefore, non-existent and thus the public had lost confidence in the legal system. Why did investigations take so long? he asked, adding "who oversees the judiciary"?

He also sought clarification on events of the last week in the Guatemala conflict -- the announcement by the URNG that it was suspending temporarily offensive military operations and the response of President Arzu Irigoyen, who had issued instructions to the Army to cease counter-insurgency operations. He added that unless the conflict stopped, there would be no end to the conflict in Guatemala. The Civil Defence Patrols should be disbanded when the conflict was over, as they were a major source of human rights problems in Guatemala. He also asked about forensic exhumations.

ECKART KLINE, expert from Germany, said given the difficult situation in Guatemala, it was encouraging that the Government had acceded to the Covenant. However, that accession created a set of obligations and expectations and those had not as yet been met. The report was disappointing, since it suggested that all was well regarding the situation of human rights in

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Guatemala. The report did not take into account the actual situation in the country. The report stated that any person violating human rights was brought before the courts, which was not the whole truth. He referred to the recently reported disappearance and death of URNG commander Efrain Bamaca. There were indications that persons at the highest level were involved in the decisions to kill Mr. Bamaca. Had anyone of those individuals been brought before a court?

He went on to ask for figures on the intimidation of judges and others charged with law enforcement. How many had been killed? How many had resigned?

The report said that there was no legal provisions for compensation of violations, he said. He asked about the existence of preventive detention which would raise serious concern under the Covenant. Nothing in the report told of the procedure whereby accused persons were held incommunicado. No institutional forms of torture were said to exist. How were the police educated regarding human rights? Was there a code of ethics for the police?

TAMAS BAN, expert from Hungary, said that, considering that it was the first report of Guatemala, it was necessary to have a thorough understanding of the legal structure in the country. Noting that the Constitution provided for precedence of international treaties over domestic law, he inquired if that precedence included the Constitution itself?

Regarding the court of constitutionality, he asked for an explanation of the powers of that court. If domestic legislation was in conflict, did the court have power to set aside that legislation? He asked for an interpretation of the provision of the constitution that stipulated that social interest prevailed over individual interest. Laws that violated the Constitution were void, according to that document. What was the actual procedure to repeal such laws? According to article 2 of the Covenant, the State party must protect its citizens from any human rights violation. He referred to a number of extra-judicial killings and other specific human rights violations and asked what was being done to end such acts.

THOMAS BUERGENTHAL, expert from the United States, said that while he had no reason to doubt the present Government's commitment to honor international obligations, the question remained whether the civilian Government had the real power to end the institutional impunity the military had enjoyed against criminal acts which it had committed. Impunity was a "curse" which had prevented Guatemalans from enjoying human rights. How could the current Government do what the past Government had failed to do, namely end impunity?

What specific measures had the Government taken to protect the population from extra-judicial killings and other extreme violations? he

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asked. What would be done to disarm civilian patrols? What was done to protect judicial personnel? Was the national police force part of the military structure or independent?

CECILIA MEDINA QUIROGA, expert from Chile, said the Supreme Court and Appellate Court were elected for five years. How could that ensure independence? Was there legislation that determined qualification for certain judicial posts? She asked about a delegation of judicial authority to various levels of the judiciary. Was there some procedure to punish a judge and what was the supervisory mechanism? Was the military formally or informally involved in protecting the peace of the citizenry? She asked if all the elements of the security apparatus were interconnected.

She went on to say that abundant evidence existed to show the unequal treatment of women and children by Guatemalan law. A number of laws were incompatible with the Covenant and put women in a subordinate position.

MARCO TULIO BRUNI CELLI, expert from Venezuela, said war was at the root of most of the human rights violations in Guatemala. Few countries had endured nearly 40 years of continuous civil war, which amounted to an ongoing and continuous violation of human rights. He said that in talks with military and guerilla leaders he had heard the negotiations were continuing and human rights were being protected. But the war continued. Often the talks failed over minor stumbling blocks. Was there political will by both parties to see that the peace talks reached a resolution that would spell peace? he asked.

Military power rested on the existence of war he continued. That alone guaranteed the continuance of impunity. Once war was no longer an established condition in Guatemala, then the power of the military over civilians would diminish. The civilian self-defense patrols were a current and future threat. How could those 340,000 armed people be demobilized and disarmed?

FRANCISCO JOSE AGUILAR URBINA, expert from Costa Rica and Committee Chairman, asked for clarification of the status of the Central American Court of Justice in Guatemala. That Court had delegated all jurisdiction over human rights questions to the Inter-American Court of Human Rights.

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