Within the Inter-American Commission’s petition and case system, all alleged victims in a given case are to be identified to the extent possible. Even so, there are situations in which identification poses challenges. In such situations, various factors have to be considered when analyzing the alleged victims’ identification, and certain standards of reasonability and flexibility may be called for.
The petitioners pointed out that the names of the alleged victims and their family members as reported in the various documents or accounts at times vary; in some instances, the accounts also differ as to the date and place of death. The petitioners reported that they were working with family members to correct the names shown on the birth and death certificates and pointed out that the differences were attributable to the following: i) the trauma and psychological impact that the genocide and grave human rights violations committed against them had on the survivors and their family members; ii) the extreme poverty of the victims and their family members and the fact that they had had little in the way of schooling; iii) the fact that the events occurred amid a war; iv) the enormous scale of the human slaughter, and v) the fear characteristic of that period and mistakes in the civil records.
The Commission would begin by observing that the present case occurred within a context of widespread violence caused by the internal armed conflict that Guatemala endured; furthermore, the facts of this case happened over thirty years ago. Secondly, another important consideration is the modus operandi of the executions and forced disappearances perpetrated by the Army and its collaborators, their purpose being to cover up what transpired and to conceal the whereabouts of the disappeared persons.
Thirdly, another factor for the IACHR to consider are the differences between the names of the alleged victims in Mayan –the mother tongue of the alleged victims- and the translation of those names into Spanish.292 Furthermore, while many indigenous persons kept their Maya names, when those names are entered into the Civil Register the public authorities render them as close to Spanish as possible, which is why the differences occur.
Using the information submitted by the parties, the Commission has made every effort to fully identify every alleged victim, taking into account the name(s) registered on the birth certificates, the death certificates or even in the complaints filed and statements given by family members. The IACHR observes that only one of the 86 alleged victims in this case has supposedly not been fully identified (see infra paragraph 128). However, the IACHR must point out that from the facts established, this person has been identified both by family members and in the exhumation report prepared by the Guatemalan Forensic Anthropology Foundation.
The Commission observes that the State did not object to this person’s inclusion among the alleged victims. Here, the Court itself has recognized that given “the nature of the facts, and the time that has passed,” it is only “reasonable that the identification and individualization of each presumed victim is complex.”293 Given these considerations, the Commission is including the person in question in the analysis that follows.
1.2. Concerning the inclusion of six persons who were not included by name in the admissibility report
As a result of the facts established, the Commission identified six persons not included by name in the admissibility report. They were: Manuel de Jesús Alarcón Morente, María Concepción Xitumul Xitumul, Máxima Emiliana García Valey, Miguel Chen Tahuico, Napoléon García de Paz, and a baby girl between 0 and 3 months old, whose name is unknown.
The Commission will include these individuals in its examination of the law, inasmuch as they were affected by the very same core events included in the admissibility report. The Commission must clarify that the names of Manuel de Jesús Alarcón Morente, and María Concepción Xitumul Xitumul were included in the original petition but not included in the admissibility report; in the merits phase, however, sufficient information was provided to include them among the list of persons affected by the various events that have been part of the case from the outset.
2. Analysis of the facts through the prism of the American Convention and other applicable inter-American instruments
The present case involves multiple events of various kinds that occurred over the course of several years. The Commission’s analysis of the law will be done in the following order: 1) massacres, extrajudicial executions and torture; 2) forced disappearances; 3) rapes; 4) children who were victims of the violence; 5) violations related to these events; 6) judicial guarantees and judicial protection, and 7) the right to equal protection and non-discrimination.
2.1 Concerning the massacres, extrajudicial executions and torture (articles 4, 5 and 7 of the American Convention, read in conjunction with Article 1(1) thereof)
The Commission recalls that the right to life is the condition sine qua non for the enjoyment of all other human rights; failure to respect the right to life renders all other rights meaningless.294 Accordingly, observance of Article 4, read in conjunction with Article 1(1) of the American Convention, not only presupposes that no person shall be arbitrarily deprived of his or her life (negative obligation), but also requires that States take all necessary measures to protect and preserve the right to life (positive obligation), as part of their duty to ensure the free and full exercise of the Convention-protected rights to all persons subject to their jurisdiction.295
Important among these measures is the States’ obligation to i) create a legal framework that deters any possible threat to the right to life; ii) see that their security forces, which are entitled to use legitimate force, respect the right to life of the individuals under their jurisdiction; iii) establish an effective system of justice capable of investigating, punishing and redressing the deprivation of life by State officials or private individuals; and iv) ensure the right to unimpeded access to the conditions that will guarantee a decent existence.296
As for the practice of extrajudicial executions, the Court has written that:
(…) the States must adopt the necessary measures not only to prevent and punish the deprivation of life as a consequence of criminal acts, but also to prevent arbitrary executions by their own police force (…).297
The Commission, for its part, wrote that:
(…) extrajudicial or summary executions are deliberate, unlawful deprivations of freedom by agents of the state, acting on orders or with at least the consent and acquiescence of the authorities. Hence, extrajudicial executions are unlawful acts committed precisely by those vested with the power originally intended to protect and guarantee the safety and life of individuals.298
The Commission recalls that the prohibition of torture is absolute and non-derogable, even in the most difficult circumstances, such as war, the threat of war, the fight against terrorism and any other crime, martial law or state of emergency, civil war or commotion, suspension of constitutional guarantees, internal political instability, or any other public disaster or emergency.299 The Inter-American Court has written that an international juridical regime of absolute prohibition of all forms of torture, both physical and psychological, has been developed and is now part of the international jus cogens.300
According to the facts established, on January 8, 1982, members of the Guatemalan Army and their collaborators perpetrated a massacre in which 32 persons were tortured and extrajudicially executed. Also, in other events that happened between 1981 and 1986, 39 persons were extrajudically executed in separate events and operations.
From the testimony given by family members and the facts documented by the CEH and the REMHI, the Commission notes that these were defenseless civilians and included women, elderly men and women and children of both sexes, all members of the Mayan indigenous community. Similarly, the IACHR has taken as established fact that before being extrajudicially executed, the deceased were not only victims of assaults on their physical and mental integrity but victims of torture as well.
This conclusion is consistent with what the Commission for Historical Clarification wrote, which documented the fact that one common characteristic of most massacres, “in addition to executions, is the amassing of serious human rights violations such as torture, cruel treatment (…) and aberrant acts such as mutilation of corpses.”301
In this same vein, in its 1981 Report on the Situation of Human Right in Guatemala, the Commission made reference to the brutality to which persons in that context were subjected:
[…]The clear purpose is to create panic and intimidation among the other persons present […] In some instances they are taken, as an exception and for very short periods, to military barracks or police stations for questioning. Later they almost always appear mutilated and with signs of having suffered brutal torture, floating in the rivers, inside plastic bags, thrown on the streets, in highway ditches or in gorges.
As a rule, when the bodies are discovered, they appear brutally disfigured, nude and without documents or signs of identification. In many instances they have been burned, thrown into the ocean or into de mouths or craters of volcanoes. Also, as it has been possible to ascertain in a large number of cases, especially when dealing with members of Indian or rural communities, whose populations have been decimated quite frequently, their bodies have been found already decomposed and rotting, buried together in large common graves. […]302
Various statements in the court record and in the record of the case with the IACHR describe the brutality with which the people of the indigenous community of Chichupac and neighboring communities were treated before being extrajudicially executed.
In the Commission’s view, this is particularly egregious case, not just because the victims were utterly defenseless when the patrollers and Army soldiers extrajudicially executed them through barbaric acts, but also because the massacres and executions perpetrated against these people were not isolated events within Guatemala’s internal armed conflict, but rather part of a policy of the State, framed in the so-called national security doctrine and within the notion of an “enemy within”. The goal of the policy was to eliminate the supposed social base of insurgent groups at the time.303 Thus, the massacres committed in the present case were special operations, planned and carried by agents of the State, as previously noted, involving systematic persecution of a community in order to wipe it out.
Based on the foregoing, the Commission concludes that the Guatemalan State violated the rights to life and to personal integrity protected under articles 4(1), 5(1) and 5(2) of the American Convention, read in conjunction with Article 1(1) thereof and to the detriment of i) the 32 persons killed in the January 8, 1982 massacre in the village of Chichupac, and ii) the other 39 people who were extrajudicially executed between 1981 and 1986.
Moreover, the Commission regards as established fact that prior to extrajudicially executing the Chichupac villagers on January 8, 1982, the Guatemalan Army held the victims against their will for at least six hours at the community health center. The facts established show that a number of victims were deprived of their liberty just moments before being extrajudically executed.
The Commission is of the view that the very circumstances under which these deprivations of liberty occurred and the clear objective of conducting extrajudicial executions, demonstrate their unlawfulness, their arbitrary nature and the violation of all the guarantees recognized in Article 7 of the Convention. The IACHR therefore concludes that the State also violated the right to personal liberty protected under Article 7 of the American Convention, read in conjunction with Article 1(1) thereof, to the detriment of the 32 executed victims who lived in the community of Chichupac, the others persons who were deprived of their liberty prior to being extrajudicially executed; and the survivors Ciriaco Galiego López, Miguel Chen Tahuico, and Napoleón García Paz.
2.2 Concerning the forced disappearances (articles 3, 4, 5 and 7 of the American Convention, read in conjunction with Article 1(1) thereof)
The jurisprudenceof the inter-American system has been that this phenomenon is an unlawful act generating multiple and continuing violations of various rights protected under the American Convention; it leaves the victim utterly defenseless and involves other related crimes. The State’s international responsibility is compounded when a disappearance is part of a systematic pattern or practice applied or tolerated by the State. In short, this is a crime against humanity that implies a gross abandonment of the most essential principles upon which the inter-American system is founded.304
Both the Commission and the Court have held that the crime of forced disappearance leaves the victim completely defenseless, and is particularly serious when it is part of a systematic pattern or practice applied or tolerated by the State.305 The Court has repeatedly held that forced disappearance, the prohibition of which is now jus cogens, is a continuing or permanent multiple violation of various rights protected by the American Convention.306
Thus, forced disappearance involves three concurring and constitutive elements: a) the deprivation of freedom; b) the direct intervention of state agents or their acquiescence, and c) the refusal to acknowledge the arrest and reveal the fate or whereabouts of the interested person.307 Within the inter-American system, this definition appears in the Inter-American Convention on Forced Disappearance of Persons, which Guatemala ratified on July 27, 1999.308 Various international instruments and the case law of international bodies and courts concur on this definition.309
Thus, States have an obligation not to practice, permit, or tolerate the forced disappearance of persons, no matter what the circumstance. Also, they must take reasonable measures to prevent the commission of this crime, conduct serious investigations when it happens to identify those responsible, impose the punishments called for, and to ensure adequate reparations for the victim.310 These obligations are expressly set forth in articles I(a) and I(b) of the Inter-American Convention on Forced Disappearance of Persons.
As for the rights violated, forced disappearance violates the right to personal liberty and places the victim at serious risk of irreparable harm to his or her rights to humane treatment and life. The Court has written that forced disappearance violates the right to humane treatment, as “prolonged isolation and being held incommunicado constitute, in themselves, forms of cruel and inhuman treatment harmful to the mental and moral integrity of the person and to the right of respect for the inherent dignity of the human being.”311 The Court has also written that subjecting a person to State agents or private parties acting with their acquiescence or tolerance and that practice torture and assassination with impunity is itself a breach of the duty to prevent violations of the rights to life and physical integrity of the person, even if those facts cannot be proven in a given case.312
The Court has also held that given the multiple and complex nature of forced disappearance, a grave violation of human rights, it may also involve the specific violation of the right to recognition as a person before the law.313 This is because a forcibly disappeared person is no longer able to enjoy and exercise his or her rights; the forced disappearance is one of the most egregious ways of placing a person beyond the protection of the law, and also seeks to deny that person’s very existence and leave the person in a kind of limbo or uncertain legal situation vis-à-vis society and the State.314
As has been established, a total of eight persons were forcibly disappeared on August 24, 1981; January 8, 18 and 31, and February 12, 1982; and December 13, 1984. According to the testimony on record, all these individuals were seen for the last time in the custody of State security agents and their whereabouts are still unknown. All the evidence on file shows that these forced disappearances were committed in the context of the violence and persecution being waged against the Mayan people suspected of having ties to the subversive movement.
In keeping with the extreme violence to which detainees were subjected during that period, one of the measures routinely used was to hold the detainees absolutely incommunicado, for the clear purpose of erasing any trail of their subsequent extrajudicial execution, which was so often the fate of detainees. On this subject, the Court has written that “[p]rolonged and coercive isolation is, by nature, cruel and inhuman treatment, harmful to the mental and moral integrity of the person and the right to dignity inherent to the human being.”315 This isolation from the outside world produces moral and psychological suffering in any person, places him in a particularly vulnerable position, and increases the risk of aggression and arbitrary acts in prison.316
Based on the above considerations, the Commission concludes that the State violated the right to recognition of one’s juridical personality, the right to life, the right to humane treatment and the right to personal liberty, protected under articles 3, 4, 5 and 7 of the American Convention, read in conjunction with Article 1(1) thereof, to the detriment of the eight disappeared persons. The Commission also finds that the State violated Article I of the Inter-American Convention on Forced Disappearance of Persons, to the detriment of this group of victims.
Before embarking upon its analysis of the other violations, the Commission believes it is important to underscore the fact that the heinous nature of the acts committed against the members of the village of Chichupac and neighboring communities, the more than 600 massacres committed against the Mayan people during the most violent period of the armed conflict, and the evidence submitted by the parties demonstrate that the various massacres, executions, disappearances, and other acts committed against the village of Chichupac and neighboring communities were part of a State strategy intended to annihilate an ethnic group by means of military operations in which thousands of Mayan indigenous persons were slaughtered, the survivors forced to flee, their subsistence economies destroyed and, lastly, thousands of Mayan indigenous persons were intentionally forced into living conditions that made them dependent on the military structure.
According to the Convention on the Prevention and Punishment of the Crime of Genocide, two elements must be present for the acts in question to qualify as genocide: any of the acts listed under Article II of the Convention on the Prevention and Punishment of the Crime of Genocide,317 and the intent to destroy the group. Concerning the first element, the Commission deems that in the present case systematic massacres were perpetrated against members of the village of Chichupac and neighboring communities; serious bodily or mental harm was inflicted upon them; and they were deliberately subjected to subhuman living conditions as survivors were forced to seek safe haven in the mountains for years. As for the second element, it is clear that the factor that all the victims had in common –including children, women, the elderly, men and leaders- was that they were members of a given ethnic group (the Mayan community of the village of Chichupac and neighboring communities) and there are multiple contextual factors that demonstrate that the actions were perpetrated with the “intent to destroy, in whole or in part,” that group, which had been identified as a target of attack because it was considered to fall within the concept of an “enemy within”.
In conclusion, the Commission finds that the facts of this case fit the crime of genocide, as there is sufficient evidence that the State planned a strategy to eliminate, at least in part, the Mayan people, through systematic massacres and other military operations, salient among them the scorched-earth operations. Based on the criteria established under international law, the Commission concludes that the massacres, killings and forced disappearances committed in the present case are particularly heinous as they fall within the definition of genocide, whose targets in this case were the Mayan people.
2.3. Concerning the rapes (articles 5 and 11 of the American Convention, read in conjunction with Article 1(1) thereof)
The IACHR has consistently held that rape committed by members of the security forces of a state against the civilian population constitutes, in any situation, a serious violation of the human rights protected by Articles 5 and 11 of the American Convention.318 All acts of rape inflict severe and long-lasting mental and physical suffering, due to the non-consensual and invasive nature of this unlawful act, which affects the victim, her family and community. This is aggravated when the perpetrator is a state agent, because of the physical and psychological power the aggressor can exercise over the victim by reason of his position of authority.319
The Inter-American Court has held that rape is a form of sexual violence320 that i) causes severe suffering because it is “an extremely traumatic experience that can have severe consequences and cause significant physical and psychological damage that leaves the victim “physically and emotionally humiliated,” a situation that is difficult to overcome with the passage of time”321; and ii) its objectives include that of “intimidating, degrading, humiliating, punishing, or controlling the person who is raped.”322 In its recent case law, the Court has concluded that rapes committed by State agents constitute acts of torture and thus violate the right established in Article 5(2) of the American Convention.323
Likewise, the Court has written that the content of Article 11 of the American Convention includes, inter alia, protection of one’s private life.324 It added that the concept of a private life included, inter alia, a person’s sex life.325 Thus, the Court has held that under these circumstances, rape violates essential aspects and values of the victim’s private life in that it represents an intrusion in that person’s sexual life. The Court writes that rape also annuls the victim’s right to decide freely with whom to have intimate relations, causing her to lose complete control over this most personal and intimate decision and over her basic bodily functions.”326
The Commission, for its part, has written that a rape not only violates the victim’s physical, mental ad moral integrity, but also intrudes into the most intimate areas of her private life, her physical and sexual space, and robs the victim of her ability to make her own independent decisions regarding her body.327
In the case of Guatemala’s armed conflict, the Commission notes that raping indigenous women was used by the Guatemalan Army as another method of destroying and annihilating the Mayan population. The CEH wrote the following concerning the rape of indigenous women:
[…] For the Maya women, the armed violence was compounded by gender violence and ethnic discrimination. […]
[…] Sexual rape was a widespread and systematic practice by State agents in the framework of the counterinsurgency strategy. Rape became a real weapon of terror, a gross violation of human rights and international humanitarian law. The immediate victims were mainly women and children, although men and boys were not spared. The rapes caused suffering and had profound aftereffects on both the immediate victims and their families, spouses and the entire community. It also had serious collective effects on the victims’ ethnic group.
[…]The rape act itself was attended by violations of many other rights. As a rule, the rapes –whether individual or selective- occurred in the context of the victims’ detention; what followed was often the victims’ death or disappearance. The cases of rapes on a mass scale or indiscriminate and public rapes occurred in areas with large indigenous populations; rapes became common practice when an outpost of military troops or PAC was installed; they also routinely preceded massacres or were part of scorched-earth operations. Pregnant women were raped, killed and their fetuses destroyed.
[…] Because of the modus operandi, rapes led to an exodus of women and scattered entire communities, breaking up marital and social relationships, and thus led to a sense of social isolation and community shame. It also drove women to abortion and infanticide, were an impediment to marriages and births within the group, which hastened the destruction of the indigenous groups. […].328
In the cas d’espèce, it has been established that i) on January 8, 1982, Máxima Emiliana García Valey was raped by members of the Guatemalan Army; ii) on November 22, 1982, Gregoria Valey Ixtecoc was raped by members of the Guatemalan Army, who then murdered her and hung her body inside her home; and iii) Juana García Depaz was the victim of multiple rapes by a number of soldiers between October 1982 and June 1985, which twice left her pregnant. Having examined the entire case file in the context described above, the Commission considers that these three women’s rapes clearly were part of the Guatemalan State’s policy, specifically as regards the use of sexual violence.
The Commission therefore concludes that the Guatemalan State is responsible for violation of articles 5(1), 5(2) and 11 of the American Convention, read in conjunction with Article 1(1) and to detriment of Máxima Emiliana García Valey, Gregoria Valey Ixtecoc and Juana García Depaz.