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Situation of Human Rights in Guatemala: Diversity, Inequality

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OEA/Ser.L/V/II. Doc. 43/15 31 December 2015 Original: Spanish INTER-AMERICAN COMMISSION ON HUMAN RIGTS Situation of Human Rights in Guatemala: Diversity, Inequality and Exclusion 2015 www.iachr.org OAS Cataloging-in-Publication Data Inter-American Commission on Human Rights. Situation Of Human Rights in Guatemala: Diversity, Inequality and Exclusion/ Inter-American Commission on Human Rights. v. ; cm. (OAS. Documentos oficiales ; OEA/Ser.L) ISBN I. Title. II. Series. OAS. Documentos oficiales ; OEA/Ser.L. OEA/Ser.L/V/II.Doc. 43/15 INTER-AMERICAN COMMISSION ON HUMAN RIGHTS Members Rose-Marie Belle Antoine James L. Cavallaro José de Jesús Orozco Henríquez Felipe González Rosa María Ortiz Tracy Robinson Paulo Vannuchi Executive Secretary Emilio Álvarez-Icaza Longoria Assistant Executive Secretary Elizabeth Abi-Mershed Approved by the Inter-American Commission on Human Rights on December 31, 2015 TABLE OF CONTENTS EXECUTIVE SUMMARY 11 CHAPTER 1 | BACKGROUND 19 CHAPTER 2 | BRIEF OVERVIEW OF THE HISTORICAL AND CURRENT TRENDS THAT AFFECT THE ENJOYMENT OF HUMAN RIGHTS 23 A. Diversity, inequality and exclusion 23 B. Armed conflict: Repercussions on Guatemalan society 27 C. Guatemalan democracy: Obstacles and challenges 31 1. 2015: Political and institutional crisis 33 CHAPTER 3 | DIVERSITY, INEQUALITY AND EXCLUSION: THE SITUATION OF THE INDIGENOUS PEOPLES 39 A. Structural Discrimination 41 B. Inequality, social exclusion and conditions of poverty 44 1. Right to food and the situation of malnutrition 46 2. Right to education 47 3. Labor rights 49 4. Right to health 51 5. Legal and institutional framework for combating discrimination against indigenous peoples and their main challenges 53 6. Lack of an integral public policy on indigenous peoples and the need to strengthen the indigenous institutional framework 55 CHAPTER 4 | CITIZEN SECURITY 61 A. Violence and insecurity 61 1. Situations that exacerbate the violence and insecurity 66 a. Disappearances 66 b. Lynchings 68 c. Private security 70 2. The State’s response: Security policies, National Civil Police, states of emergency, role of the armed forces and special squads 74 a. Security policies and the National Civil Police 74 b. States of emergency 78 c. Military participation in citizen security and militarization of zones of social unrest 83 d. Special Reserve Army Squads for Citizen Security 88 3. Disproportionate impact of violence on certain groups 88 a. Human rights defenders 89 b. Women 105 c. Children and adolescents 111 d. Journalists and freedom of expression 122 e. Migrants, refugees, internally displaced and trafficking in persons 135 f. Lesbian, gay, bisexual and transgender persons (LGBT) 144 g. Persons with disabilities 145 h. Persons deprived of their liberty 149 CHAPTER 5 | ADMINISTRATION OF JUSTICE 157 A. Judicial Independence: Judicial officers, selection processes, retaining one’s position 158 B. Access to justice 164 1. Difficulties in effective access to justice and the role of the State institutions 168 2. Right to defense and the use and abuse of procedural motions 172 3. CICIG 173 C. Impunity and the legacy of the internal armed conflict 174 1. Trial for genocide and other crimes against humanity 176 2. Amnesty laws 178 3. State’s position regarding the decisions of the inter-American System - Genocide Denial 180 4. Reparations for violations committed during the armed conflict 183 CHAPTER 6 | RIGHT TO PROPERTY AND CONSULTATION OF INDIGENOUS PEOPLES 187 A. Right to property 187 1. Legal and institutional framework relevant to indigenous property rights in Guatemala 189 2. Failure to recognize historical rights 191 3. Lack of legal certainty, titling, delimitation, and demarcation of indigenous lands and territories 193 4. Forced evictions of indigenous peoples and communities 196 5. Establishment and management of protected natural areas 200 B. Consultation 201 1. Situation of the exploration and exploitation of natural resources that affect indigenous lands and territories, and main concerns in connection with the activity of the Guatemalan State 201 2. Specific guarantees of the consultation 206 3. Community and municipal consultations 211 CHAPTER 7 | CONCLUSIONS AND RECOMMENDATIONS 215 A. Conclusions 215 B. General Recommendations 215 C. Recommendations with respect to the situation of violence and insecurity 216 D. Recommendations with respect to the administration of justice 217 E. Recommendations with respect to the situation of inequality and exclusion of the indigenous peoples 218 EXECUTIVE SUMMARY Executive summary | 11 EXECUTIVE SUMMARY 1. In the present report the Inter-American Commission on Human Rights (IACHR) addresses the situation of human rights in Guatemala, and a number of structural challenges in access to justice and impunity, citizen security, marginalization and discrimination which have affected severely the human rights of its inhabitants. Special attention is given to the situation of human rights defenders, journalists, women and children, LGBTI people, migrant population, among others. In this context, the report also addresses the situation of the indigenous peoples, who has seen their rights to ancestral lands, and to consultation affected due to grave levels of exclusion and inequality with generations of malnutrition due to structural discrimination and racism. 2. The IACHR has focused specific attention on the independence and autonomy of the administration of justice in Guatemala and the selection processes and guarantees of tenure for the positions of justice operators. It has also focused on the need for the State to provide an adequate, efficient, independent, and impartial system for the administration of justice to tackle the persistent structural impunity with respect to severe human rights violations in both the past and the present. 3. The IACHR is especially troubled by the State's failure to comply with the recommendations and judgments of the organs of the inter-American human rights system (IAHRS). Despite the fact that Guatemala accepted the jurisdiction of the Inter-American Court of Human Rights on March 9, 1987 and undertook to abide by its decisions, under the administration of former president Otto Pérez Molina, in adjudicated cases including those where the State accepted its responsibility, the Government denied its obligation to live up to its commitments questioning the temporal jurisdiction of the Court and stressing the legitimacy of amnesties during the internal armed conflict, including that contained in the National Reconciliation Act of 1996. The IACHR observes with concern that, during the administration of former President Pérez Molina, the government refused to characterize the incidents of the conflict, with its devastating impact on indigenous communities, as genocide. 4. In this regard, in a private hearing to monitor compliance with 11 judgments against Guatemala, the Inter-American Court in its last resolution of August 21, 2014, indicated that the position taken by Guatemala constituted "an act of obvious contempt of State regarding the enforceability of the judgments delivered by the Court, contrary to the international principle conform to its treaty obligations." The Court explained the inapplicability of the Reconciliation Act to the cases subject to the supervision and ordered the State to adopt "all measures necessary to comply promptly with the judgments, and "comply in good faith with their Inter-American Commission on Human Rights | IACHR 12 | Situation of Human Rights in Guatemala: Diversity, Inequality and Exclusion treaty obligations and inform the Court1. During a hearing held in the 156 period of session of the Commission, held from October 17 to 28, 2015, the State reiterated to the IACHR its approach as to the scope of the jurisdiction of the Inter-American Court; also reiterated its position with regard on the alleged legitimacy of the amnesty as a cause of extinction of criminal responsibility in cases of human rights violations committed during the internal armed conflict. The Commission restates to the Government of Guatemala that this position is contrary to the standards and inter-American jurisprudence and contributes to the prevailing of impunity. 5. Notwithstanding, the IACHR recognizes progress in different areas which has a direct impact on the situation of human rights. The IACHR notes changes in favor of a society committed with human rights, promoted by the work of public officials compromised with justice and human rights defenders as well as social leaders. The support of international human rights agencies, as well as the International Commission against Impunity in Guatemala (CICIG, for its acronym in Spanish), has been critical to those efforts. 6. Throughout this report, the Commission highlights for example reduction of the rate of homicide; and, on indigenous rights, the decision of the Constitutional Court of September 2015 by which for the first time ordered the practice consultation with indigenous communities affected by an investment project. 7. Also in the administration of justice it is worth noting the work of the CICIG and the Public Ministry in the dismantling of criminal networks and the fight against corruption. In this regard the IACHR appreciates that in 2015 the State extended the mandate of the CICIG. Moreover, the Commission appreciates the State's efforts to create a protection program for journalists and the actions taken to prevent and combat human trafficking, and the creation of differentiated statistics on violence against
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