Residents of the village of chichupac and neighboring communities, municipality of rabinal

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2.4 Concerning the children who were victims of the violence (Article 19 of the American Convention, read in conjunction with Article 1(1) thereof)

  1. Article 19 of the American Convention provides that “[e]very minor child has the right to the measures of protection required by his condition as a minor on the part of his family, society, and the state.” As the Court has held, this provision must be construed as an added right which that Convention establishes for those who, because of their physical and emotional development, require special protection.329 Thus, children have the same human rights that all persons enjoy, as well as special rights by virtue of their status as children.

  1. The Court held that “[a]doption of special measures to protect children is a responsibility both of the State and of the family, community, and society to which they belong.”330 Such measures must be based on the principle of the best interests of the child, which takes into consideration i) the special characteristics of the child; ii) the need to allow him or her to develop his or her full potential, and iii) the dignity of the individual.331 The Court has been emphatic in pointing out that these special measures must be determined according to the particular needs of the child as a subject of law.332

  1. For purposes of establishing the content and scope of the general provision set forth in Article 19 of the American Convention, the Inter-American Court has written that both the American Convention and the Convention on the Rights of the Child form part of a very comprehensive international corpus juris for the protection of the child.333 Furthermore, the special measures of protection that the States must adopt in favor of indigenous children include the promotion and protection of their right to live according to their own culture, their own religion and their own language.334

  1. From the facts established, the Commission notes that i) Santiago Reyes Román was 14 when he was executed on January 1, 1982; ii) Rosa González Tecú , age 10, Héctor Rolando Alvarado García, age 2, Adela Florentina Alvarado García, one year old, María Concepción Xitumul Xitumul, age 5, and a newborn baby girl between the ages of 0 and 3 months and whose name is unknown, were executed on March 2, 1983; iii) José León Grave García was 16 when he was executed on October 22, 1983; iv) Fidel Alvarado Sucup was 16 when he was executed on January 1, 1982; and v) Abraham Alvarado Tecú (o Agapito Alvarado Depáz) was 15 when he was executed on January 18, 1982.

  1. In the case of these boys and girls, the Commission finds that the Guatemalan State not only violated their right to life, in the manner described in this report, but also violated its obligation to provide them with special protection, established in Article 19 of the American Convention.

  1. The Commission also observes that in November 1982 or March 1983, Antonio Chen Mendoza, age 5, died from a lack of medical care. The IACHR recalls that the CEH concluded that “during their displacement, villagers endured conditions that sometimes killed them, as they were already very weak and short on food; they thus became prone to illness or died of hunger.”335

  1. The Commission deems that the State, by its policy of persecuting and exterminating the indigenous population during the armed conflict, created a situation of insecurity that in some cases, such as this one, caused people to die for lack of access to health services. The death of Antonio Chen Mendoza, in the manner described in the established facts, is an example of this very situation. The IACHR therefore concludes that the State violated the right to life and its special duty of protection, established in articles 4 and 19 of the American Convention, read in conjunction with Article 1(1) thereof, to the detriment of the child Antonio Chen Mendoza.

2.5. Concerning subsequent effects related to these events

  1. It has already been established that the massacres and other violations committed against the village of Chichupac and neighboring communities were planned and carried out by the State of Guatemala through the Army and its civilian collaborators for the purpose of exterminating the members of the village of Chichupac and neighboring communities. Nonetheless, the persons who were able to survive suffered a series of consequences that had a profoundly detrimental impact on them for many years. What follows is an analysis of the rights protected by the American Convention that were violated to the detriment of the survivors of the massacres.

2.5.1. Right to humane treatment and the right to a family, in the case of the survivors and the victim’s next-of-kin (articles 5 and 17 of the American Convention, read in conjunction with Article 1(1) thereof)

  1. The organs of the inter-American system have repeatedly insisted that the next of kin of the victims of human rights violations may also be victims. In cases related to massacres and extrajudicial executions, the Court has considered that “no evidence is needed to prove the severe effects on the mental integrity of the next of kin of victims who have been executed.”336 As regards forced disappearances specifically, the Court has established that:

(…) the violation of those relatives' mental and moral integrity is a direct consequence of [the] forced disappearance. The circumstances of such disappearances generate suffering and anguish, in addition to a sense of insecurity, frustration and impotence in the face of the public authorities' failure to investigate.337

  1. By extension, because of the pain and anguish suffered by the next of kin of the victims of massacres, extrajudicial executions and forced disappearances, the Commission considers that they were, at the same time, victims of a violation of their right to humane treatment.

  1. The suffering of the next of kin in this case is especially severe since, according to the facts established in the present report, a number of the members of the community not only witnessed the way in which their family members were tortured and extrajudicially executed, which in itself constitutes cruel, inhuman and degrading treatment, but they themselves were victims of violations of their own personal integrity in the form of assaults, arrests, rapes, and so on.

  1. As to the plight of the families affected by events of this type, the IACHR observed that it:

[…] has given close attention to the plight of the population uprooted by the conflict since the early 1980’s. […] It was at that time that the “scorched earth” strategy of massacres and the eradication of whole villages implemented by the Lucas García regime and continued by the Efraín Rios Montt regime led to massive flows of displaced persons. The separation of families, communities and cultural groups tore the social fabric of the country.338

  1. The Commission believes that in the instant case, the persecution, extreme violence, the utter defenseless of the victim population, and the intention to destroy the bases of family and society, which were the driving forces behind the violence that occurred in the context described earlier, allow one to infer that this was an autonomous violation of the right to protection of the family.

  1. Likewise, in cases in which a complete and effective investigation was lacking, the Court has written that:

(...) the absence of a complete and effective investigation into the facts constitutes a source of additional suffering and anguish for victims and their next of kin, who have the right to know the truth of what happened. This right to the truth requires a procedural determination of the most complete historical truth possible, including the determination of patterns of collective action and of all those who, in different ways, took part in the said violations, as well as their corresponding responsibilities.339

  1. The Commission recalls that the Court has deemed the “absence of effective remedies to be an additional source of suffering and anguish for the alleged victims and their next of kin.”340 In the instant case, the State has not conducted a thorough investigation of the facts or effective judicial proceedings aimed at identifying and punishing those responsible for the massacres, the disappearances, and the other violations that occurred in connection with these events, as will be apparent in the analysis of the violation of articles 8 and 25 of the American Convention.

  1. In short, it is obvious to the Commission that the anguish that the victims’ next of kin have suffered, the lack of effective protection and the profound suffering and radical change in their lives have violated their right to humane treatment. The Commission therefore concludes that the State violated the right to mental and moral integrity, and the rights to family, protected in Articles 5(1) and 17 of the American Convention, read in conjunction with the duty to respect rights undertaken in Article 1(1) thereof, to the detriment of the next of kin of the victims in this case and who are listed in the single annex to this report, as well as the survivors Ciriaco Galiego López, Miguel Chen Tahuico, and Napoleón García Paz.

2.5.2. The right not to be subjected to forced labor (Article 6 of the American Convention, read in conjunction with Article 1(1) thereof)

  1. On the matter of forced labor, the Court has written that:

according to the ILO Convention (No. 29), the definition of forced or compulsory labour consists of two basic elements. First, the work or service is exacted “under the menace of a penalty.” Second, it is performed involuntarily. Furthermore, the Court finds that, to constitute a violation of Article 6(2) of the American Convention, it is necessary that the alleged violation can be attributed to State agents, either due to their direct participation or to their acquiescence to the facts. […]341

  1. The established facts show that members of the National Army held Mrs. Juana García Depaz in the model village of Chichupac from late 1983 and forced her to cook for the soldiers. The Commission considers that the threat of a penalty was self-evident since, as Mrs. Juana García Depaz recounted, she was threatened multiple times and even beaten and raped. It is equally obvious that Mrs. García Depaz had no choice in the matter, as she was forced to work against her will and under threat.

  1. The Commission therefore considers that the Guatemalan State is responsible for violation of Article 6(2) of the American Convention, read in conjunction with Article 1(1) thereof, to the detriment of Juana García Depaz.

2.5.3. Freedom of movement and residence (Article 22 of the American Convention, read in conjunction with Article 1(1) thereof)

  1. The Inter-American Court has written that Article 22(1) of the Convention “protects the right to not be forcefully displaced within a State Party to the Convention.”342 Here, the Court has held that the United Nations Guiding Principles on Internal Displacement are particularly relevant in determining the content and scope of Article 22 of the American Convention.343 Those principles state that “[f]or the purposes of these Principles, internally displaced persons are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or in order to avoid the effects of armed conflict, situations of generalized violence, violations of human rights […], and who have not crossed an internationally recognized State border.”344

  1. Thus, the Court has held that:

[…] given the complexity of the phenomenon of internal displacement and the wide range of human rights that are violated or put at risk, and considering the special vulnerability or defenselessness that is generally the lot of the displaced, their situation can be understood as de facto lack of protection. […] Under the American Convention, this situation requires that States take positive measures to reverse the effects of displaced persons’ weakness, vulnerability and defenselessness, including with respect to the actions and practices of third parties.345

  1. As for the forced displacement of indigenous peoples driven from their community, the Court has held that this can make them particularly vulnerable because the destructive consequences for the ethnic and cultural fabric exposes indigenous peoples to the real risk of cultural or physical extinction.346 It is imperative that States take specific measures of protection that take into account the unique characteristics of each indigenous people, its customary law, values, uses and customs, so as to prevent and reverse the effects of that situation.347

  1. In the context of the armed conflict in Guatemala, the CEH observed that:

The displacement of the civilian population in Guatemala stands out […] because it was done on such a massive scale and was so destructive […]. […] Families and entire communities were torn apart and the cultural ties that bound them together were severed. The unprecedented terror […] unleashed a massive exodus of various peoples, most of whom were from Maya communities […]. For some families, the displacement was a matter of weeks; for others, however, the displacement went on for years. […].348

  1. In the cas d’espèce, the Commission has taken as established fact that the members of the village of Chichupac and neighboring communities were forced to abandon their villages, leaving behind destroyed belongings, their homes and their land; initially, they fled to neighboring communities or the mountains. For months and even years, these people lived in fear and insecurity, induced by the State’s persecution, struggling to survive the threats, persecution, and hunger, and without access to health and education services. The Commission recalls that the Court has held that the fear that displaced survivors have for their safety and the failure to conduct a criminal investigation of the events, deprive the displaced survivors of their right to freedom of movement and residence.349

  1. It has also been established that starting in late 1983, the survivors of Chichupac village were resettled in the model village set up by the Army, living in precarious conditions and under constant military control. The CEH wrote the following in this regard:

From 1983 onwards, the Army’s strategy for the displaced population was designed more to regain control of the displaced population, urging it to return to places under its control: amnesties were offered and those who accepted were resettled in highly militarized communities with a view to long-term pacification of the conflict areas. […] To gain control over the population in the conflict areas, particularly the displaced who had returned, the Army used different methods, such as forced resettlement in places where it could easily control the population, places like the model villages or the larger villages and hamlets.350

The Amy […] ordered people who were going to be resettled in these places to build their own houses […thereby trying to undermine] the traditional settlement master plans of the campesino indigenous population […]351.

  1. Given that fact, the Commission observes that the facts of the present case occurred within a generalized context of internal forced displacement in Guatemala, particularly of the indigenous population, and was caused by the internal armed conflict and the terror to which the indigenous population was subjected. The Commission therefore concludes that the State of Guatemala is responsible for violation of Article 22(1) of the American Convention, read in conjunction with Article 1(1) thereof, to the detriment of the survivors of the village of Chichupac and neighboring communities.

2.5.4. Rights to honor and dignity, freedom of conscience and religion, freedom of association, and to participate in government (articles 11, 12, 16 and 23 of the American Convention, read in conjunction with Article 1(1) thereof)

  1. The Commission has written that for an ethnic group to be able to preserve its cultural values, it is essential that its members be allowed to enjoy all of the rights set forth in the American Convention on Human Rights, since this guarantees their effective functioning as a group, which includes preservation of their own cultural identity.352 Particularly relevant, among others, are the right to honor and dignity, freedom of conscience and religion, and freedom of association,353 which will be examined below.

  1. The Court has written that Article 11 of the Convention recognizes that everyone has the right to have his honor respected, prohibits any unlawful attack on honor and reputation, and imposes on the States the obligation to provide the protection of the law against such attacks.354 The Court has also held that the right to have one’s honor respected relates to self-esteem and self-worth, whereas reputation refers to the opinion other persons have about someone.355

  1. In the instant case, the Commission has taken as established fact that the Guatemalan State regarded the Mayan people as guerrillas, the social base of the guerrilla forces, the enemy within and subversives, all based on the National Security Doctrine and the Victory 82 Plan, thereby damaging the Maya people’s reputation and violating their honor. This stigma was one of the main pretexts for the atrocious persecution and annihilation of which they were victims.

  1. Here, the CEH wrote that:

[…] in most cases, the identification between the Maya communities and the insurgency was intentionally exaggerated by the State which, drawing on traditional racist stereotypes, used this form of identification to eliminate present and future possibilities of the population providing assistance to or joining any insurgent project.356

  1. Based on the foregoing, the Commission considers that the Guatemalan State is responsible for violation of Article 11 of the American Convention, read in conjunction with Article 1(1) thereof, to the detriment of the villagers of Chichupac and neighboring communities.

  1. The Court has emphasized that the right to freedom of conscience and religion means that family members have a right to give the victim’s remains a decent burial.357 The Court has also held that caring for a person’s mortal remains is a way of observing the right to human dignity, since:

[…] the mortal remains of a person deserve respectful treatment before that person’s next of kin, due to the significance they have for them. Respect for those remains, observed in all cultures, acquires a very special significance in the Mayan culture […] For the Mayan culture […] funeral ceremonies ensure the possibility of the generations of the living, the deceased person, and the deceased ancestors meeting anew. Thus, the cycle between life and death closes with these funeral ceremonies, allowing them to “express their respect for [the victim], have him near and return him or take him to live with the ancestors”, as well as for the new generations to share and learn about his life, something that is traditional in his indigenous culture.358

  1. Likewise, in cases of forced disappearance, the Court has observed that:

[…] one of the greatest sources of suffering for the […] community members is that they do not know what has happened to the remains of their loved ones, and, as a result, they cannot honor and bury them in accordance with fundamental norms of [their] culture […].359

  1. In the context of the armed conflict in Guatemala, the CEH concluded that:

[…] thousands of Guatemalans were unable to observe the rites that normally accompany a person’s death and burial, causing a profound pain that persists to this day among the sectors of the population so affected. The climate of fear, the military presence and other circumstances that surrounded the massacres, the flight, and the persecution in the mountains often made burial of the dead impossible. For all the cultures and religions present in Guatemala, it is virtually unthinkable that the dead should not be given a decent burial. It is contrary to everyone’s values and dignity. For the Maya, the rituals of death and burial are important because of the active relationship that unites the living and the dead. The lack of a sacred place where this relationship could be nurtured constitutes a profound concern that emerges from the testimonies of many Maya communities.360

  1. In the instant case, the Commission has taken as established fact that the victims are Maya indigenous people belonging to the Achí language group. Taking into account the CEH’s observation,361 the IACHR considers that for indigenous peoples, the right to culture and their ethnic identity involve, inter alia, the expression and preservation of their beliefs, language, customs, dress, way of life, sacred places and social organization.362

  1. The Commission considers that the Army’s counterinsurgency policy sought not only to destroy the social bases of the guerrilla movement, but also to destroy the cultural values that gave the indigenous communities their sense of cohesion and collective endeavor. From the facts established in this case, the victims who were extrajudicially executed did not receive a burial according to the community’s traditions. On the contrary, they were buried in clandestine graves.

  1. The Commission considers that the way in which the cadavers were destroyed and the way in which the mortal remains of the victims were buried, without respecting the survivors’ cultural, spiritual and religious beliefs, is a violation of Article 12 of the Convention, read in conjunction with Article 1(1) thereof, to the detriment of the members of the community of the village of Chichupac and neighboring communities.

  1. The Inter-American Court has held that the right to freedom of association refers to “the right to join with others in lawful common pursuits, without pressure or interference that may alter or impair the nature of such purpose.”363 In the instant case, the analysis should be done as a function of the role the exercise of that right plays in the community life of indigenous peoples.

  1. The IACHR also recalls the fundamental role that observance of political rights plays in strengthening a democratic society and the rule of law, which the Court has repeatedly pointed out. Here the Court has written that:

[…] Political rights are human rights of fundamental importance within the inter-American system and they are closely related to other rights embodied in the American Convention, such as freedom of expression, and freedom of association and assembly; together, they make democracy possible. […]364

  1. On the subject of the indigenous peoples’ community life, their authorities and the effect of leaving such communities without leaders, the CEH observed that:

[…] The concept of authority in Maya communities has to do with service, wisdom and counsel. The authority figures are persons with experience in serving the community. They are the ones who can build consensus, provide advice and guidance, find arrangements satisfactory to the parties, rehabilitate those who violate community norms and restore harmony to the community […]

[…] During the years of the armed conflict, a number of developments occurred that disrupted the structures of indigenous authority and leadership. Indigenous authorities were killed, persecuted or replaced, and the dismantling of community organizations weakened the community as a whole, both as a group and as a people.
[…] Between 1980 and 1983, the military strategy was intended to destroy the structure of the Maya communities as social groups. It focused on destroying the authority-based order and organization and symbols of cultural identity. At its most extreme, the Army conducted operations to totally annihilate communities, and scorched-earth operations, massacres, executions, torture, and rapes on a massive scale. […].365

  1. In the present case it has been shown that in the January 8, 1982 massacre, agents of the State executed 32 persons, most of whom were representatives of the community and catechists. It has also been shown that on February 12, 1982, Mr. Casimiro Siana, who served as the village’s auxiliary mayor, was detained by members of the Army; his whereabouts are still unknown.

  1. The Commission recalls that the CEH concluded that “the main targets of the selective repression were community leaders; in Rabinal, catechists, health promoters and auxiliary mayors were executed.”366 The CEH wrote that “by making leaders of various sectors of the group the specific targets, their vulnerability increased and the very existence of the group was threatened, since the leaders were in charge of directing and managing affairs and settling disputes within the community.”367

  1. The Commission recalls that at the time these events occurred, the execution or disappearance of persons in political positions installed terror in others serving in that capacity.

  1. The Commission considers that as a consequence of the facts recounted in this report, the collective life of the members of the village of Chichupac and neighboring communities was torn asunder, to the point that it was left with no authority figure, had been broken apart and practically annihilated. The IACHR notes that the testimony in the record of the case reveals the terror that the survivors experienced; the community way of life had been altered, leaving the survivors with a sense of isolation. The Commission observes that the State policy during the armed conflict contributed to the destruction of the social fabric of the community, which had endured thanks to the intense interaction of its members. The climate of terror did not stop with the massacres, since for years thereafter the area was militarized and the survivors were afraid to mend the social fabric.

  1. Therefore, the Commission considers that the Guatemalan State is also responsible for the violation of Article 16 of the American Convention, read in conjunction with Article 1(1) thereof, to the detriment of the members of the village of Chichupac and neighboring communities. It also finds that the Guatemalan State is responsible for the violation of Mr. Casimiro Siana’s political rights, according to article 23 of the American Convention, who disappeared on February 12, 1982 and has not been seen since.

2.5.5. Right to property (Article 21 of the American Convention, read in conjunction with Article 1(1) thereof)

  1. The case law of the Court has developed a broad concept of property that includes, inter alia, the use and enjoyment of property, defined as those material objects that may be appropriated, and also any right that may form part of a person’s patrimony.368 The Court has found a violation of the right to private property in cases in which the State was deemed responsible for the destruction of houses and other property.369

  1. The CEH found that in most cases, “the massacres involved pillaging of the victims’ possessions and the destruction of their homes, crops, animals, cooking utensils, grinding stones, clothing, and anything they had for their material survival, all part of the so-called scorched-earth operations.”370 It also made the point that:

Irrespective of the actions, a considerable percentage of massacres recorded by the CEH had other features suggesting that the purpose was to eliminate the communities’ basic means of subsistence, cause the communities to break up or destroy them altogether, and to dismantle their organizations and other mechanisms of collective endeavor. The most important elements in this respect were: the physical destruction of the communities, the homes, crops and animals, places of prayer, schools, communal meeting rooms, and other community buildings; the desecration of the churches by using them as places for torture and execution; destruction of material elements like corn and grinding stones, which carry strong symbolism for the culture [.]371

  1. In the present case, it has been established that members of the Army, after perpetrating the various massacres and executions against the village of Chichupac and neighboring communities, not only stole the personal effects, food and domestic animals belonging to the villagers, but also destroyed the goods and, in some cases, burned down all the homes. According to the petitioners, between 100 and 125 homes were destroyed.372

  1. For the foregoing reasons, the Commission concludes that there are sufficient elements to find that the Guatemalan State violated Article 21 of the American Convention, read in conjunction with Article 1(1) thereof, to the detriment of the members of the village of Chichupac and neighboring communities.

2.6. Rights to a fair trial and to judicial protection (articles 8 and 25 of the American Convention read in conjunction with Article 1(1) thereof)

  1. Article 8(1) of the American Convention provides that:

“[e]very person has the right to a hearing, with due guarantees and with a reasonable time, by a competent, independent, and impartial tribunal, previously established by law, in the substantiation of any accusation of a criminal nature made against him or for the determination of his rights and obligations of a civil, labor, fiscal, or any other nature.”

  1. For its part, Article 25(1) of the Convention reads as follows:

Everyone has the right to simple and prompt recourse, or any other effective recourse, to a competent court or tribunal for protection against acts that violate his fundamental rights recognized by the constitution or laws of the state concerned or by this Convention, even though such violation may have been committed by persons acting in the course of their official duties.

  1. As the Inter-American Court wrote, the right to judicial guarantees, means that every person whose human rights have been violated has the right “to obtain from the competent State authorities a clarification of the events in which his or her rights were violated and the identification of those responsible through an investigation of the facts and prosecution of those responsible.”373 In the case of the right to judicial protection, the Court has written that:

(...) Article 25 in relation to Article 1(1) of the American Convention obliges the State to guarantee to every individual access to the administration of justice and, in particular, to a simple and prompt recourse so that, inter alia, those responsible for human rights violations may be prosecuted and reparations obtained for the damages suffered. Article 25 is one of the fundamental pillars not only of the American Convention by of the very rule of law in a democratic society (...).374

  1. Thus, the State has an obligation to ensure that “each of the state’s actions that make up the investigation process, as well as the investigation in its totality, [is] oriented toward a specific purpose, the determination of the truth and the investigation, pursuit, arrest, prosecution and, if applicable, punishment of those responsible for the events.”375 In cases of forced disappearance, the Court has written that the right of access to justice includes an investigation of the facts that strives to ascertain the fate or whereabouts of the victim and, where called for, the location of the victim’s remains.376 The Court has also written that the right to the truth is subsumed in the right of the victim or his or her next of kin to obtain from the competent organs of the State a clarification of the violations and the corresponding responsibilities, through the investigation and prosecution provided for in articles 8 and 25 of the Convention.377

  1. The duty to investigate is one of means, and not results, but must be undertaken by the State as its own legal obligation, and not as a mere formality preordained to be ineffective.378 The investigation must be carried out with the necessary diligence and be an effective, serious and impartial investigation379 conducted within a reasonable period of time.380 Thus, the presence of acts that obstruct justice, procedural hurdles or problems created by a lack of cooperation on the part of the authorities that have thwarted or are thwarting a resolution of the case, are a violation of the right to judicial guarantees. The IACHR recalls that the obligation to investigate and punish any act that involves a violation of Convention-protected rights requires punishment of not just the material authors of the human rights violations, but also their intellectual authors.381

  1. As for the situation in the wake of the armed conflict in Guatemala, the IACHR recalls that in the Peace Accords signed by the State, the latter asserted the following:

The Guatemalan people are entitled to know the full truth about the human rights violations and acts of violence that occurred in the context of the internal armed conflict. Shedding light objectively and impartially on what happened will contribute to the process of national reconciliation and democratization in the country.382

  1. Accordingly, in following up on the human rights situation after the Peace Accords were signed, the IACHR documented the following:

A key aspect of the accords, identified as a critical failure of the past and a priority challenge for the present and the future, is the requirement that justice be done and be seen to be done. The State acknowledges that the systems for public security and the administration of justice are gravely deficient. Among the problems identified by the State itself are abusive and arbitrary action by the police forces; the lack of institutional capacity to investigate and prosecute crime, especially when committed by State agents; and serious deficiencies in due process and the administration of justice.383

  1. The facts of the present case are part of a broader situation in which impunity ran high; this high level of impunity is itself one of the most serious human rights violations occurring in Guatemala.384 Impunity for those responsible for committing human rights violations is one of the most important factors contributing to the persistence of such violations, as well as criminal and social violence.385 The facts of this case occurred against a backdrop of extreme violence and persecution, in which impunity was one of the gears in a system that was the umbrella under which the most unspeakable atrocities were committed. The obligation to combat impunity is premised on an understanding of the fact that “impunity fosters chronic recidivism of human rights violations, and total defenseless of victims and their relatives."386

  1. The facts of the instant case involve a series of serious violations of human rights, among them arbitrary detention, torture, rape, extrajudicial execution and forced disappearance of the villagers of Chichupac and neighboring communities, as part of a policy conceived by those who wielded power, and aimed at wiping out entire communities on a scale that qualifies as genocide.

  1. Given the precedents that establish the State’s obligations to investigate cases of this type, the Commission will examine whether, in the instant case, the Guatemalan State conducted a serious and diligent investigation within a reasonable period of time.

2.6.1. Concerning the duty to conduct a serious and diligent investigation of the facts of this case

  1. Regarding the massacre in the village of Chichupac on January 8, 1982, the Commission observes that the victims’ next of kin took the risk of formally reporting the facts in March 1993. Over 32 years have passed since the events in this case, and 21 years since a complaint was filed. Nevertheless, the Commission notes that from the documentation supplied by the parties, no one has ever been made to answer for these human rights violations; indeed, neither the intellectual authors nor material authors have even been identified.

  1. From the evidence on record, the IACHR observes that the only investigative measures adopted were the testimonies taken from family members and the 1993 exhumation of the victims’ remains. The Commission also observes that the case file was missing for at least six years, which not only prevented any judicial inquiries but also prevented the victims’ family members from becoming plaintiffs in the case.

  1. Further evidence of the lack of due diligence was the absence of any response from the military authorities. In the course of the investigations into the massacre in the village of Chichupac, the attorney with the Public Prosecution Service requested information from military personnel, concerning the names of the persons who were soldiers in the Army during that period. The reply received was that there was no military post in the area and that they had no such information. The same lack of responsiveness was evident in the lack of information concerning the Guatemalan Army platoons detailed to the area, despite the fact that the testimony received is consistent in pointing out that in addition to patrolmen, soldiers were involved in the facts denounced.

  1. The obstruction of state officials’ investigations in the course of a criminal case involving human rights seriously impairs the effort to identify and punish those responsible, especially when agents of the State are involved. In response to this obstruction, no evidence exists suggesting any follow-up or that enforcement mechanisms were brought to bear to ensure prompt access to information that would shed light on the facts. The obstruction of justice was not limited to investigative omissions; evidence of a cover-up was also unmistakable, which began when the events occurred and continued throughout the investigations.

  1. As for the inquiries into the other events that the present case involves, the Commission notes that apart from the statements taken and exhumations in some cases, nothing was ever done to identify and punish those responsible, with the result that no one has been made to answer for any of these crimes. The IACHR observes that in various cases, the victims’ next of kin identified and named members of the Guatemalan Army, state authorities or civilians who participated in the events; even so, the Commission has managed to establish that the State took no legal measure to identify or investigate them.

  1. The Commission further considers that the State has not conducted an exhaustive identification of the exhumed remains and has failed to take measures to locate the whereabouts of the remains of the disappeared victims.

  1. Although certain family members have given direct information concerning the possible authors of the events, the authorities failed to take any action to determine the criminal culpability of the military personnel involved or to investigate the role played by higher-ranking Army officers or public officials.

  1. In conclusion, the Commission considers that, at the domestic level, the investigation into the facts of the present case has been neither complete nor exhaustive. On the contrary, it has been extremely deficient since no efforts were made to follow through with the investigation into what happened and identify and punish all those responsible.

2.6.2. Reasonable time

  1. One of the elements of due process required under Article 8(1) of the American Convention is that the courts decide the cases submitted to their jurisdiction within a reasonable time. Hence, a protracted delay can, in itself, constitute a violation of judicial guarantees.387 Thus, it is for the State to explain and prove why it has required more time than would be reasonable, in principle, to deliver a final judgment in a specific case.388

  1. The reasonability of the time period referred to in Article 8(1) of the Convention must be analyzed as a function of the total duration of the criminal process.389 In keeping with Article 8(1) of the American Convention and with respect to the specific circumstances of this case, the Commission will consider the four factors that the Court has used in its recent case law, which are: (i) the complexity of the matter; (ii) the procedural activity of the interested party; (iii) the conduct of the judicial authorities, and (iv) the general effects on the legal situation of the person involved in the proceeding.390

  1. The State alleged that the delay in the case was due to its complexity, since multiple persons were involved in the various events alleged in the case. Nevertheless, the State did not elaborate on just how those factors might have influenced the delay in the case.

  1. As the Court wrote, a delay in an investigation cannot be justified by the complexity of the matter when i) possible perpetrators have been identified; ii) it has been verified that there were witnesses to the event, and iii) there are possible lines of investigation.391 In any event, for the complexity argument to prosper, the State must show specific information linking the complexity of the case to its delay. In the instant case, the Commission has already mentioned the long periods of inactivity in this case, including the fact that the case file was missing for more than six years, factors that have nothing to do with the complexity alleged by the State.

  1. As for the participation of the interested parties in the proceedings in this case, the Commission observes that family members and witnesses came forward to make statements in the case. Furthermore, their legal representatives were named civil parties to the case, and thus followed and helped drive the investigation, filing repeated complaints about the delay in the proceedings and the long periods of procedural inactivity.

  1. As for the conduct of the judicial authorities, the Commission has already observed that there was no sustained momentum in the investigations.

  1. The Commission recalls that the Court has pointed out a pattern of judicial delay in Guatemala with respect to the investigation of serious violations of human rights.392 The Court noted:

[…] the unwarranted delay in the Guatemalan judicial system,393 and […] the violations of the right to due process.394 In its judgments in the cases of Myrna Mack Chang, Maritza Urrutia, the Plan de Sánchez Massacre, Molina Theissen and Tiu Tojín, all of which concerned human rights violations committed during the armed conflict in Guatemala, the Court held that 13, 11, 22, 22 and 17 years after the events, respectively, the State had not yet complied with its obligations to investigate and end the impunity.395

  1. Summarizing, the Commission considers that the delay in the administration of domestic justice far exceeds what might be considered a reasonable period of time and therefore constitutes a denial of justice to the detriment of the victims’ next of kin.

2.6.3. Legal definition of the crime of forced disappearance

  1. With regard to the forced disappearances in this case, the State argued that forced disappearance did not become a criminal offense under Guatemalan law until 1995. It argued that no one could be criminally prosecuted for supposed forced disappearances that occurred between 1981 and 1986, as this would imply a violation of the principle of non-retroactivity of the law, protected under Article 15 of the Guatemalan Constitution.

  1. The Court has written that States must establish an adequate legal framework if the investigation of cases of forced disappearance is to be effective.396 As the Court held, this implies legislating the forced disappearance of persons as an autonomous crime in their domestic laws, “since criminal prosecution is an adequate instrument for preventing future violations of human rights.”397 It also wrote that the description of the crime should take into account the minimum elements established in the specific international instruments, both universal and inter-American, adopted to protect victims of forced disappearance.398

  1. In the present case, although forced disappearance is now a criminal offense under Guatemala’s domestic laws, the Commission observes that no criminal investigations have been conducted in Guatemala into the crime of forced disappearance. The Commission notes that the Court itself underscored the fact that States have an obligation to apply the crime of forced disappearance once it has been introduced into the domestic legal system, even with respect to facts that occurred before forced disappearance was criminalized, since the crime is a continuing offense until such time as the person’s whereabouts have been established.399

  1. The failure to properly criminalize acts such as those that occurred in the present case also contributes to the impunity that continues to obstruct the determination of responsibilities, at all levels, within the Guatemalan Army, among its collaborators and among other state officials.

2.6.4. Conclusion

  1. From all the foregoing, the Commission concludes that the domestic investigations and proceedings have not been effective remedies in guaranteeing access to justice, determining the truth of what happened, investigating and punishing all those responsible and making reparations for the consequences of the violations. Hence, the Commission finds that the State has violated articles 8(1) and 25 of the American Convention, read in junction with the obligation to respect rights set forth in Article 1(1) thereof, and Article I(b) of the Inter-American Convention on Forced Disappearance of Persons, to the detriment of the disappeared persons and the victims’ next of kin listed in the single annex to this report.

  1. Finally, the Commission concludes that the State violated Article 7 of the Convention of Belém do Pará, by its failure to comply with the obligation to investigate the acts of sexual violence described and analyzed in the present report.

2.7. Right to equal protection (Article 24 of the American Convention, read in conjunction with Article 1(1) thereof)

  1. The Inter-American Court has written that “[n]on-discrimination, together with equality before the law and equal protection of the law, are elements of a general basic principle related to the protection of human rights.”400 The Court wrote the following regarding the text of Article 24 of the American Convention:

(…) while Article 1(1) refers to the State’s obligation to respect and guarantee “without discrimination” the rights contained in the American Convention, Article 24 protects the right to “equal protection of the law.”401 Article 24 of the American Convention prohibits de jure and de facto discrimination, not just with respect to the rights upheld in that treaty, but also with respect to any law that a State enacts and enforces. In other words, if a State discriminates in its observance of a convention-protected right or in guaranteeing such a right, it is in noncompliance with its obligation under Article 1(1) and the substantive right in question. If, on the other hand, the discrimination concerns unequal protection of the domestic law or its application, it has to be examined in light of Article 24 of the American Convention.402

  1. A clear demonstration of the right to equal protection is every person’s right not to be the victim of racial discrimination. The International Convention on the Elimination of All Forms of Racial Discrimination –to which Guatemala is party-403 defines this form of discrimination as follows:

(…) any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” [Article 1… and stipulates that each States Party, inter alia,] undertakes to engage in no act or practice of racial discrimination against persons, groups of persons or institutions and to ensure that all public authorities and public institutions, national and local, shall act in conformity with this obligation [Article 2(1)(a)], not to sponsor, defend or support racial discrimination by any persons or organizations [Article 2(1)(b)].

[Furthermore, in Article 5 of this Convention, the States parties undertake] “to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights: (a) The right to equal treatment before the tribunals and all other organs administering justice; (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution […]

  1. With regard to indigenous peoples’ right to equality and non-discrimination, the United Nations Declaration on the Rights of Indigenous Peoples provides that:

Article 2. Indigenous peoples and individuals are free and equal to all other peoples and individuals and have the right to be free from any kind of discrimination, in theexercise of their rights, in particular that based on their indigenous origin oridentity.
Article 9. Indigenous peoples and individuals have the right to belong to an indigenous community or nation, in accordance with the traditions and customs of the community or nation concerned. No discrimination of any kind may arise from the exercise of such a right.

  1. Article 3(1) of ILO Convention No. 169 on Indigenous and Tribunal Peoples in Independent Countries, which Guatemala ratified in 1996, provides that “[i]ndigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination.” The Committee on the Elimination of Racial Discrimination has called upon the States to “[e]nsure that members of indigenous peoples are free and equal in dignity and rights and free from any discrimination, in particular that based on indigenous origin or identity.”404

  1. The Commission considers that because of the racism and structural exclusion405 prevailing at the time of the armed conflict in Guatemala, the Maya people were the most cruelly affected sector of the Guatemalan population. It is the Commission’s view that racial discrimination was the basis both of the State policy of stigmatizing and then exterminating the Maya people, and of the “demonization” of the Maya people in order to de-sensitize the aggressors. It also explains the brutality with which the massacres and persecution were conducted, the enslavement of some surviving children and the authorities’ subsequent failure to react to these events.406

  1. Thus, Guatemala’s armed conflict led to multiple, egregious violations of the cultural integrity of the Maya people, and systematic, brutal attacks on Maya individuals, families and communities, for the mere fact that they were Maya, all part of a state policy of racism and genocide.407

  1. The Commission therefore believes that the discrimination that was the context in which the egregious events described and analyzed in this report occurred and of which the village of Chichupac and neighboring communities were victim, constituted an expression of the racial discrimination practiced against the Maya people during the armed conflict in Guatemala. Therefore, the IACHR considers that the massacres, persecution and extermination of the villagers of Chichupac and neighboring communities, which were planned and orchestrated by the State, were in themselves violations of Articles 24 and 1(1) of the American Convention because they were predicated on discrimination.

  1. The Commission also considers that the failure of the State authorities charged with investigating and prosecuting the crimes committed in this case to respond swiftly and effectively to the events, also constituted a violation of those articles. Both the occurrence of acts constituting genocide and confirmation of a pattern of racial discrimination in the form of the stigmatization and persecution of members of the Maya people as sympathizers of the insurgency, demanded special diligence of Guatemala in its investigation and prosecution of the perpetrators. The Commission observes that this degree of special diligence was glaringly absent in the Guatemalan courts’ response –as it was explained in detail in the previous section.

  1. The IACHR has written the following concerning Guatemala:

impunity for serious violations of human rights committed during the internal armed conflict against the members of the Mayan population, reached levels of such magnitude that the only possible conclusion is that the vestiges of a racist and discriminatory culture continue to permeate large sectors and areas of Guatemalan society, and are particularly apparent in the justice system408 [and] the impunity of those responsible for violations of the Mayan people’s human rights during the armed conflict […] and the lack of investigation of acts of discrimination against members of Guatemalan indigenous populations, affect not only the rule of law, but also the dignity of the people.409

  1. Therefore, by failing to diligently investigate and prosecute the serious crimes and racism of which the members of the village of Chichupac and neighboring communities were victims and thereby perpetuating the cycle of racial discrimination that resulted in the crimes committed in the present case, the Guatemalan courts have violated Article 24 of the Convention, read in conjunction with Article 1(1) thereof.

  1.  Finally, before proceeding to express its conclusions, the Commission considers it pertinent to refer to what the State has indicated with regard to a group of victims who had resorted to the NPR for reparations related to the facts in the present case. In this regard, the Commission reaffirms that the obligation to provide reparations emerges as a direct consequence of the State’s responsibility, derived from a violation of the Convention, and for that reason, it requires integral and adequate reparations as a result of the violations found in this report410.

  1. With respect to this group of victims, however, the Commission does not have specific information regarding the relationship of these reparations with the totality of the facts and violations declared in the present case. If these reparations were actually delivered by the NPR, the Commission will examine the link between the established facts and violations of the report, and assess its value, its suitability, and sufficiency in light of the Inter-American reparations standards411

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