...continued            

Besides this, as the Commission has found directly, in many cases not even the armed forces have the necessary combination of willpower and real ability to control the activities of these armed organs that they have created.  Whether it is because these organizations are in communities distant from urban centers and military bases or because they have taken on major local importance, the military forces prefer to let them act as they will and tend to block any efforts to disband, change or correct them.

            Meanwhile, the unjustified appearances or attacks the subversives provide a pre­text --however inconsistent-- for those who defend the need for the patrols.  Although the subversives are few and their military capacity nil,[27] their existence generates fears that have been confirmed by their local use of explosives to destroy the electricity and road infrastructure.

            The Commission has heard consistently in villages that have discarded the patrols or rejected the reasons for their existence that ending them is the necessary condition for living in peace.

            The patrols constitute a genuine system of involuntary servitude.  They are structured in such a way as to benefit different parts of the power pyramid.  At the top, the army benefits because it maintains a system of control over the civilian population and support for its operations.  This control enables the army to maintain a predominant position in the national government structure.  It gives the army an instrument of national influence that the weakened representative democratic system cannot compete with.

            The political support of the patrols is so important for the military that

--as is drawn from the note to the IACHR from the Minister of Defense dated September 1993--when their presumed antisubversive function disappears, the idea is to keep the patrols with the presumed objective of community development as "development committees," clearly outside military jurisdiction and usurping a function of civil government.

            This system is even used by middle levels of authority.  The local civil chiefs of the patrols use them to exercise power in their areas.  They do this either by competing politically or by preventing the democratic exercise of government.  They also have economic purposes, generally coinciding with or in complicity with the local relatively privileged segments of the society.

            The system maintains "order," that is, it uses fear and violent coercion to prevent legal and open democratic give-and-take.  Local disputes are often resolved by the patrol chiefs on the basis of their own personal or group interests, thereby supplanting the legal system of administering justice.  The patrols exercise de facto municipal police power and have no real supervision, a fact that promotes more violations.  It is not at all uncommon for the patrols to decide that the people of "their" villages cannot walk the streets after a certain hour, or cannot go from one village to another except in a certain manner.[28]

            The local elected mayors are allied with the patrols because of the climate of political fear that the patrols enforce.  When a mayor is independent, he is impotent in the face of the patrols' power.  The Commission was able to confirm, for example, in the area of San Pedro Jocopilas, Quiche, that the office of the municipal intendent has only one person on the police force, who also performs bureaucratic functions, while the local patrols, under the central power of a person known as "General Commander," Mr. Francisco Ixcoy Lopez, have established a curfew which starts at sundown, transport controls, personal servitude systems, requirements of money contributions to patrol members and others.  All of these have been established by means of personal threats, assaults and murders.  

            One example of this continuing tension and annoyance was confirmed directly by the Commission in the area of Colotenango, the department of Huehuetenango, where the patrols keep up a constant irritating action on the grounds that guerrillas are present in the area.

            The campesinos of Xemal, a nearby village whose people are tired of putting up with the excesses of the local patrol, organized a march by the people from several nearby villages to the small city of Colotenango on August 28, 1993.  Some 5,000 demonstrators, counting men, women and children, went in an organized manner to Colotenango where they demonstrated and had meetings with the authorities to request the dissolution of the patrols, especially the Xemal patrol.  There presence in the city that day was relatively uneventful.  

            As they left in the evening, they were attacked by rifle fire from the Colotenango patrolmen at the Los Naranjales bridge.  One old man was killed and several persons were seriously wounded.  At the request of the Public Ministry,

twenty patrol members have been charged and one has been arrested.

            Later on, two campesinos were murdered in Xemal, allegedly by patrol members.  A few days later, the chief of the Xemal patrol, Efrain Domingo Morales, was murdered on September 6, as he led a meeting of PACs, in Huehuetenango.  

            As a consequence of this, after the PACs had threatened to kill them, eighty campesinos from Los Naranjales, Colotenango, took refuge in Mexico.  Friction continues and is getting worse.  

            2.  INADEQUATE PUBLIC SERVICES LEAD THE PACS TO FILL THE VOID AND TO ABUSES

            In many cases, the government is not able to control the PACs in practice, either through the military force, the local justice system, local political elected authorities or through the police.

            The Commission has also seen that in a certain small number of cases, the people tend to accept the patrols as the lesser of two evils, considering the absence of the services and guarantees the state ought to provide.

            The weakness or real absence of public services and democratic authorities (in health, education, justice, municipal government and others) in much of the country creates a void that makes it easy for the patrols to take power.  In a vicious circle, in many cases, the patrols, either for ideological reasons or to maintain their power, attack or sabotage the few efforts to create public services either by the communities themselves or the government.  The Commission has received many charges of attacks attributed to the patrols on health clinics, education services, literacy centers, municipal authorities and other organizations that want to participate electorally at the local level.

            This example, which is typical of the real situation in Guatemala, points to a phenomenon that has a two-fold negative effect on human rights:  The state does not provide a law enforcement service to guarantee tranquility and order under legal controls and on the other hand, that void is filled by means of a perverse system that imposes an illegal, non-democratic authoritarian order which constitutes the real power, sets up arbitrary rules and hands out vigilante justice.  This uncontrolled, illegal order generates new friction, leads to cases of violent revenge against patrol members or chiefs, creates even more disturbance and is a vicious circle of desperation.  It even leads certain parts of the population to support the patrols as the lesser of two evils.

            Patrols have been converted, perversely in most cases, into the most important public sector presence in many parts of the country.  Their presence and action exceeds violations of life, liberty and personal integrity.  Their action prevents freedom of commerce and private property and its use, upsets the rural resettlement of displaced persons and refugees, and, in a nutshell, constitutes one of the main obstacles to the efforts to eliminate the socioeconomic structural defects of Guatemala.

            3.  VOLUNTARY PARTICIPATION IN THE PATROLS IS NOT RESPECTED OR ENFORCED BY THE STATE

            During this period, attacks have continued against those who do not want to join the patrols or those who defend the freedom of association embodied in the American Convention on Human Rights and the Guatemalan Constitution.[29

            Several members of the Runujel Junam Ethnic Communities Council (CERJ) were assaulted during the second half of 1993.  A CERJ member was kidnapped in front of the National Police station in Santa Cruz del Quiche by armed men and disappeared without the police even trying to prevent the abduction.  A campesino named Domingo Caguil was killed in San Andres Sajcabaja, allegedly by an assistant of the regional military commissioner who was accused of having committed other crimes and having sought asylum at a military base in Quiche.

            Two brothers, Santos Francisco and Tomas Pantzay Calel (14 and 16 years of age), and their cousin, Fausto Chantzay Chom (19) disappeared in Chichicastenango.  The chiefs of the patrol told the families of the disappeared men that they had made this happen since the men did not want to join the patrol, and warned the family not to tell the authorities about this.

            Civil patrol members from Chel, Chajul, El Quiche, charged that the army forces them to attack the CPR in Caba and to continue participating in the civil patrols.  Three campesinos have been murdered in the last three years, allegedly because they did not want to participate in the patrols.

            Other charges indicate that the civil patrol members from the cantons of Xesic, Cucubaj, Chicabracan, 2o. de Santa Cruz del Quiche, Joyabaj and San Pedro Jocopilas have stepped up their actions since October and November 1993, and have forced young men to join the civil patrol.

            In the case of Catalino Chocoy (52 years), Jose Corino Teshen (31 years) and Abelino Baycaj Chile (40 years), all of whom were farm workers from the municipality of Santo Domingo Xenacoj, Sacatepequez, a military commissioner and several armed men in civilian dress who were driving vehicles with darkened windows wounded them seriously with gunfire after they tried to recruit them for service in the militarized patrols, in full view of local witnesses.  The COPREDEH Presidential Commission opened the case in February 1991 and filed suit in the courts.  Two years later, on February 18, 1993, the judge ordered that the military commissioner be taken into custody as the presumed responsible party.  COPREDEH said in a letter dated March 18, 1993, that the order came about "following publicity given to the case by this Commission (COPREDEH)" but that the order "is still pending execution."  In other words, the court system acted only because COPREDEH forced it to and was not acting on its own, and the police force has not carried out the judge's arrest order which was issued two full years after a crime seen by numerous witnesses had occurred.  

            The Commission had discussed the case of Santiago Atitlan, a city which was demilitarized by order of President Serrano in 1991 after the military had attacked the population several times.  The military headquarters were removed from the city.  The people of Santiago Atitlan organized themselves into truly voluntary patrols which were under civilian authority and succeeded in establishing a climate of tranquillity and peace.[30]  However, according to charges that have come before the Commission, the army is installing bases around the city and using maneuvers to re-create the unrest that had been ended.  A new detachment is to place in Santiago Atitlan, at Cumbre de Chucha.  The local people protested since they considered this a violation of the degree prohibiting military personnel from setting up installations in the area.  This decree had been issued after the December 2, 1990 massacre in which 22 local people were killed.  The residents maintain that on July 27 and September 15, 1993, heavily armed soldiers took stations at El Mirador, at the entrance to Santiago Atitlan.  Several thousand residents prevented them from entering the town itself.  Pamphlets have appeared on the streets explaining the reopening of the aforementioned military base and soldiers wearing civilian clothing have been accused of thefts and assaults in the city.  The army wants to justify its actions by stating that the people of Santiago Atitlan are "guerrilla sympathizers."[31]  

            These circumstances are of special symbolic importance because Santiago Atitlan is an example that demilitarization and civilian resumption of authority in an organized fashion leads to the disappearance of violence and social unrest.  

            4. THE GOVERNMENT SHOULD IMPLEMENT A TIMETABLE FOR DISBANDMENT AND DEMOCRATIC TRANSFORMATION OF THE PATROLS

            The Commission was informed by the Minister of Government of a plan to create municipal police forces, trained and reasonably well equipped, under local authorities and coordinated by the National Police.

            In its Declaration on Human Rights of October 1993, the government stated, "in the future, and if necessary," the new patrols (CDVCs) will be created only after a democratic decision is taken by the inhabitants of each village, which decision shall be done under the supervision of the Office of the Human Rights Attorney.

            Later, in January 1994, the President of the Republic sent the Commission a copy of a message he had sent to President Bill Clinton of the United States in which he asserted that participation in the "patrols" was voluntary and the Human Rights Attorney had the authority to enforce that voluntariness.

            President de León Carpio also stated that:

       "The Government has given orders for these Defense Committees to be converted into Peace and Development Committees independent of mili­tary control.  These committees will have no defense function.  We hope to speed up and intensify the process in the areas not actively threatened by armed groups.  If there is peace, there will be no reason to continue with the Self-Defense Committees, and they can be converted into Deve­lop­ment Committees, as has already happened in some places where the former are not needed."

            The Commission wishes to touch on the two points of voluntariness and conver­sion into Peace and Development Committees.

            Regarding voluntariness, it is the Commission's understanding that, given the ille­gal power that the patrols have acquired by virtue of the support and impunity that the Army has given them, many of their members participate voluntarily in them because they then enjoy unlimited power over the other inhabitants of their villages, and are able in many cases to commit abuses and violations.  Because of this, the most important ques­tion about this voluntariness is whether a democratically organized community maintains its patrols voluntarily or by imposition.

            Regarding the conversion of these committees, the Commission is gratified that the Government has decided to put an end to their control by the military, and this for two reasons.  Firstly because military control had the practical effect of allowing the patrols to commit human rights violations and constantly intimidate the other inhabitants with impu­nity.  And also because in most cases there was no control at all.

            However, the Commission holds that any conversion must take place, as it has said before, "in the framework of a democratic society," that is, subject to and with respect for the civilian authorities and enabling the inhabitants of the village, canton or municipality to express democratically their choice for disbandment or conversion, with­out giving those committees any privileges at the expense of other civilian associations.  This would be the case if the new Peace and Development Committees were civilian associa­tions on an equal footing with other civilian associations legally constituted in the country.  However, given the discretionary authority and record of abuses of the patrols, any conver­sion from the present position of power of these armed groups would entail the issu­ance of regulations and highly rigorous measures to ensure that the new name does not conceal and disguise a continued exercise by them of illegal power that strikes at human rights.

            In the closing chapter the Commission upholds its position on the disbandment and conversion of the PACs in the framework of a democratic society, for which it pre­sents specific proposals.  

IV.  FORCED MILITARY RECRUITMENT  

            In its Fourth Report the Commission looked into illegal military recruitment prac­tices, which involved violations of the rights to liberty and due process and the prohibition of servitude, and which it considered to be discriminatory against Mayan citizens and destructive of their culture and dignity.  In his report of January 1994 the Human Rights Attorney reported 174 complaints of irregular military recruitment in 1993, of which 57 led to resolution thereof and 117 were resolved by discharge from the Army.  Dr. Jorge La Guardia asserts that "the situation of irregular recruitment remains as described in the pre­vious report."

            1. Policy decisions do not coincide with practices

            The Minister of Defense assured the Commission in September 1993 that the current policy was to end the abuses and abide by legal recruitment procedures.  The minister recognized that there could have been excesses or irregular practices by the military commissioners in rural areas but that they had been investigated and corrected when charged.

            However, in late October 1993, members of the army appeared to have started a new irregular campaign of forced recruitment.  On October 25, in Coban, Alta Verapaz and Jocotan, Chiquimula, several young men were taken into custody on the streets and pressed into the army.  On October 28, in San Pedro Sacatequepez, San Marcos, the same occurred with 30 other young men.  On October 31, soldiers stopped buses traveling on the Pan American highway and forced the young men to get into military trucks.  In none of these cases had any of the young men received the appropriate military call to service.

            General Enriquez, the Minister of Defense, admitted during statements made to the press on November 17 that cases of irregular forced recruitment continued to exist.  In fact, some of these involved minors, married men and students.  He gave assurances that in all cases for which charges had been received at the Office of the Human Rights Attorney, they had been resolved.

            2.            New draft laws

            The Minister of Defense pointed out in his interview with the Commission that the Executive had proposed to the congress a new draft law which was respectful, in his opinion, of human rights and which also included measures to prevent discrimination against young Mayan men.  The Widows Coordination Committee of Guatemala submitted to the Congress a draft law to eliminate forced military recruitment.  This bill had been submitted by congressman Enrique Guillen.  According to the minister of defense, the exceptions provided for in both bills were in general agreement, although the CONAVIGUA bill includes "conscientious objection" as grounds for exemption.  

            3. Competence of military commissioners to detain young men of military age

            Many of the practices denounced relate to apprehensions of persons by military commissioners who are the military delegates in the local towns.  There is a controversy regarding their jurisdiction and their authority to conduct forced recruitment.  The minister of defense pointed out to the Commission that directives from the ministry indicated that a person can be detained for military conscription only when a competent judge has issued such an order.  However, the President of the Supreme Court, Jorge Rodil Peralta, has issued formal instructions to the judges to not intervene when the military commissioners apprehend young men to render military service.

            The Commission believes that individual personal liberty is at stake here.  In the event of presumed disobedience of military service obligations, there should exist prior to apprehension or forced recruitment some opposing procedure of a legal type that would guarantee that the person in question has been duly summoned and was given the legal opportunity to avail himself of the exemptions in the law.  

                    V.  REFUGEES AND THEIR RETURN AND PEACEFUL RESETTLEMENT

            In its Fourth Report and during its on-site visit to Guatemala, the Commission had the opportunity to review the process of repatriation from Mexico where in early 1993, there were 45,000 registered Guatemalan refugees and another number of unregistered refugees.

            The repatriation took place under the terms of the October 8, 1992 agreements between the Government of Guatemala, through the National Commission for Repatriates, Refugees and Displaced Persons (CEAR), and the refugees represented by the Perma­nent Committees (CP), through the intervention of the United Nations High Commissioner for Refugees and the Government of Mexico.[32]  Several thousand refu­gees have returned to Guatemala during this time, both singly and in organized groups, among them 200 families who returned on January 12, 1994, and similar contingents are expected in the coming months, which would be settled in different farms previously set aside for them.

            Among the recommendations made by the IACHR in May 1993 are:  a) Respect for the agreements governing the return; b) government attention to the problem of land adjudication for the returnees; c) providing citizenship documents to those persons as citizens and to their children born in Mexico; d) compliance with the promise of postponing military service for the children of refugees who are of conscription age; and e) efforts to consolidate a climate of release and respect for the peaceful return without aggression or discrimination.

            The CEAR (governmental) informed the Commission[33] regarding the advances and difficulties as of September 1993 in that process.  The repatriates' organizations, however, continue to make allegations of violations, especially by the army.

            The CEAR points out that from January to August, 1993, 3,675 persons had been repatriated, either in a mass way with the involvement of the Permanent Commissions or on an individual/family basis directly through governmental agencies.  Information from non-governmental legal agencies that support the repatriates informed the Commission, however, that during the period, approximately 10,000 persons had returned, most of them on an individual or family basis.  The government reported that the agreement is being respected in terms of offering the same service benefits to repatriates who came back, either individually or in a group manner.

            According to the government, the freedom of association of the returnees is being respected.  It offered as a example the case of the Victoria 20 de Enero Community (returned on that date in 1993) in which the inhabitants have been organized into development support committees or associations.

            The government also reports that military service exemption cards are being issued.  In all, 406 cards have been issued both to repatriates who came back in a group fashion or as individual families.

            As for the recommendation of identifying documents, the government reports that 1,068 resident cards and 3,074 birth certificates were issued in 1993.  Many of these were from the Victoria 20 de Enero Community.

            In compliance with the agreements regarding strict observance of respect for life and personal integrity, the government reports on the road works and health centers in Santa Clara, Poligono 14, and a donation of two vehicles for the protection and safety of Santa Clara and 20 de Enero.  It recognized the existence of marihuana plantings and mines and explosives at the Poligono 14 National Farm, which were there before the repatriates arrived.  These are being removed and deactivated with the cooperation of military personnel.

            The government also reports on the advances made in the projects to support uprooted peoples (Fund for Labor and Productive Reentry-FORELAP); the economic and social reactivation of the Usumacinta, La Pasion and La Machaca farm cooperatives; description of the displaced and repatriated population; and the project and alternatives for land preparation.

            The "Ixil Solidarity" Program (in the Ixil triangle), which is to benefit 180,000 persons, will be implemented with public funds.  This program includes health, education, housing support, road infrastructure, institutional strengthening and production components.  The project seeks to advance the development of rural areas whose people have been displaced and endangered by the armed conflict.

            For their part, refugee representatives have submitted charges to the Commission during this period alleging harassment by the army of the settlements in Poligono 14 and in particular Victoria 20 de Enero, which are called "guerrilla colonies," and they have also alleged restrictions of their freedom to associate.

            In September, the Commission visited some of the communities and found that, while there are difficulties, the settlements are progressing and their associations are acting normally and within the law.  Nevertheless, there is doubtlessly the intermittent presence of military forces as well as low fly-overs by military aircraft.  These are a constant source of tangible anxiety, considering that not many years ago, the same people suffered terribly the consequences of the armed conflict and the memory of military excesses and the presence of subversive elements is still alive in them.  At that time, the situation led to massacres and forced the people to seek a safe haven in Mexico.

            According to the army, their insecurity arises from the mines that have been placed in the zone and the armed confrontations with EGP forces, which are part of the URNG, and are active in the zone.  According to military information, the army has had 42 casualties (dead and wounded) in the municipality of Ixcan, close to Tercer Pueblo, in recent months.  These are the results of mine explosions and skirmishes.[34]  The army and the subversives charge each other with these acts and deny responsibility for placing the mines in the area.

            During its September visit, the Commission received words of confirmation at the returnee population settlements in Poligono XIV that the military authorities are prohibiting the returnees from contacting the local people and are interfering in the free trade of their products.

            Refugees who were part of the Ixcan Grande Cooperative planned on returning to their lands on November 22 and to rebuild their cooperatives.  The cooperatives, created two decades ago, are the legal owners of land in the Ixcan area.  The refugees are parts of approximately 14 groups totaling 14,000 persons who are preparing their return.  In the meantime, reduction of international aid is disrupting the situation of the refugees in Quintana Roo, Campeche and Chiapas, Mexico.

            Despite the difficulties, after a temporary suspension decreed by President de Leon Carpio in November 1993 based on the belief that it was not safe to return, 1,291 refugees returned on November 9 to Pueblo Nuevo Resurrección, Ixcan, Department of Quiché.  Minister Enríquez undertook to withdraw the military detachment from the urban area of Pueblo Nuevo.  Lots owned by 267 families are allegedly occupied by the army.

            In short, the Commission believes:

            a)            Despite the real difficulties and fears of different groups, the refugee return process in furtherance of the Agreements of Mexico 1992 started to become significant in terms of numbers in 1993 and early 1994.

            b)            In general, the government has been shifting its attitude of mistrust and restriction of the liberty of the refugees, and has begun to carry out its commitments, both those arising from the special agreement as well as those that relate to the rights of all citizens.

            c)            Proof of this positive attitude by the government are the monitoring efforts, the basic logistical support for the transfer, including the acceptance of the symbolic value of their passage through Guatemala City, personal documents, respect for the commitment to exemption from military service, land adjudication and development projects.

            d)            To the contrary, difficulties were posed by the harassment committed by a number of military sectors who have continued accusing the returnees publicly of being subversive accomplices and the little political willingness to use public resources to facilitate their resettlement and productive recovery.

            e)            A deterrent to return is the militarization of the places where refu­gees were returning in organized, peaceful groups.  The presence of subversive elements in the area also contributes to the climate of tension.

                   VI.  COMMUNITIES OF PEOPLES IN RESISTANCE

            During its on-site visit, the Commission entered into contact with representatives of the CPR.  It obtained abundant direct information on the actual practice of human rights for their members.  The Commission confirmed its earlier conclusion[35] that these people are civilians and that as such, the state must respect their lives, goods and dignity, even during exercise of its legitimate right to fight the subversion.

            The isolation of the CPRs comes about not only because of their own fears born in the tragic circumstances of the massacres in the 1980s.  The Commission obtained information on activities by the army and the PACs which keep these people in isolation by means of harassment of free transit and free commerce and finally, a policy of verbal attacks accusing the people of being guerrilla accomplices and making them the direct or indirect targets of aggression.

            The campesinos of the CPRs in the municipalities of Dolores, La Libertad, Sayaxe and Santa Ana, for example, cannot trade with neighboring communities because the military forces and the PAC chiefs prevent local tradesmen from working with them.  They contend that this is the same as collaborating with the guerrilla warfare.  The army chief of staff gave personal assurances to the IACHR that he would issue orders to respect freedom of trade and transit of those people.

            The CPRs have charged that military forces from the nearby bases of Chajul and Visan, assisted by civil patrol members, prevent them from visiting their families and the markets of Chajul and Nebaj, and accuse them of being guerrillas.  The same threats are also made against the parish priests of the two communities.

            The IACHR believes that progress was made toward normalizing relations with the CPRs by the peaceful and uneventful visit made by 600 of their members in September 1993 to Guatemala City where they met with the President of the Republic and agreed to initiate a dialogue.  This dialogue has not been started yet because the Executive states that he will not do so until the CPRs "accept unconditionally the civilian and military authorities."  For their part, the CPRs have maintained that they, "are willing to accept all those legally constituted authorities who act under the framework of the Constitution of the Republic."

            The Commission believes that a government has the obligation to provide, without discrimination, to the entire population all the guarantees recognized in the American Convention and that, given the historical circumstances that led to the formation of the CPRs, the emphasis that they put on the legality of the actions of the authorities is fully justified.

            The CPRs have achieved a high level of internal organization in terms of community health, education, religion and local issues.  They have a democratically elect structure of local committees coordinated by area committees and the coordination commission.  They meet annually in a general assembly, as the highest authority of the CPRs of the mountain area.

            Contrary to what was said by the army which presumes that this is a "guerrilla organization,"[36] the Commission believes that as long as these CPRs and their members do not commit specific crimes, their right of association and their organization should be respected and even promoted by the Guatemalan state.  In this sense, the proper thing to do would be to strengthen the municipal authorities of those areas by means of broad, guaranteed elections.  The Commission believes that one solution that could be explored would be drawing new municipal boundaries so that these people would form a homogeneous population, their rights would be better guaranteed and they would have the full range of political activity and liberty that the constitution guarantees.

            The IACHR likewise reaffirms the position it set out before which is that the state has the right and the obligation to deal with subversive movements, and the existence of "guerrilla warfare" in the zone promotes conditions for ongoing friction caused by military operations and for threats to the people in general by the PACs, which are contrary to normal relations among neighbors.  This does not mean, however, that the respect for the CPRs should begin only "when the armed conflict is resolved."  The Commission recalls that the international commitments of Guatemala obligate it to respect the civil population even in a situation of internal conflict.  It calls particular attention to Articles 13 and 14 of Protocol II of the Geneva Conventions which expressly prohibit, "attacking, destroying, removing or wasting foods, food producing agricultural areas, crops, livestock, installations of drinking water and supplies and irrigation systems," and "the acts or threats of violence whose principal purpose is the spread terror among the civil population."

            Return and normalization of the CPRs of Ixcan in February 1994

            On February 2, 1994, the population of the CPRs of Ixcan returned peacefully and of their own volition to their original lands, seeking to reestablish themselves there and enjoy the rights that inhere in any civilian population.  They have so far accomplished this re­set­tle­ment without major incident and in the presence of C.E.A.R officers.

            The Commission has been invited by those communities to verify the observance of human rights in the course of that resettlement, and has decided to make its visit in March 1994.  The Government of Guatemala has given its official consent to this visit.

VII.  RIGHT TO JUDICIAL GUARANTEES

            1. The state's obligation with respect to past violations of human rights.  Clarification of the truth

            The need to move beyond the tragic historical moments that Guatemala has been suffering for more than two decades leads the Commission to insist that the state has the duty to clarify the violations of human rights perpetrated prior to the establishment of the democratic regime and those which continued after its reestablishment in 1986.  In its 1985-86 annual report, the Commission held with respect to another country[37] that:

            All societies have the irrefutable right to know the truth of events, as well as the reasons and circumstances in which such aberrant crimes come to be committed, so as to prevent such events from occurring again in the future...  Such access to truth presupposes not cutting off freedom of expression which--it is clear--must be exercised responsibly; and the formation of investigation committees whose members and competence are to be determined in accordance with the corresponding internal law of each country, or the extension of the necessary measures so that the judicial branch of government itself can undertake all investigations that might be necessary.

            The Inter-American Court of Human Rights, for its part, has ruled in the "Honduran" cases:

            With respect to the obligation to investigate... it must have meaning and be undertaken by the state as a juridical duty of its own and not as a simple action of private interests which requires the procedural initiative of the victim or his family members or the private contribution of probationary elements, without the public authority effectively looking for the truth.[38]

            Several events that have occurred since June 1993 give urgency and relevance to this topic.  The finding of several secret cemeteries and the charges of the existence of many others, the presumed revelations that have come up from members or former members of the armed forces, the announced destruction of the archives of the Presidential General Staff, which allegedly contained abundant documents on the illegal repression mechanisms and the circumstances and names of those responsible for them all, justified, in the opinion of the Commission, the request of many organizations to the government to form a "Truth Commission" which would organize, examine and make public a complete investigation into the violations of human rights that have occurred since 1980.  

            With respect to the possibility of a new amnesty, in response to a specific question from the Commission, the government pointed out in a letter dated September 22, "at this time, no draft law of that nature is being studied by the Executive Branch or the Legislative."  The note also pointed out that the government is taking all actions that would help to modify those structures that encourage or permit the violation of human rights within the Executive Branch structure and "has undertaken actions aimed at suggesting changes in the policy of other public agencies for the purpose of strengthening the enforcement of human rights."  

            2. Judicial sentences of those who violate human rights

            Some court sentences that have been handed down during the present administration are testimony to the efforts the government has made to bring impunity to an end.

            The Ninth Chamber of the Court of Appeals in Antigua, Guatemala, decided on July 6, 1993, to revoke the pardon of Manuel Perbal Ajtzalam and Munuel Leon Lares, as the material perpetrators, for the murder and serious wounds of Juan Perebal Xigum and Manuel Perebal Morales, and the injuries to Diego Perebal Leon.  These persons were given a maximum sentence of 30 years in prison as well as additional penalties, including the payment of civil liability stemming from the crime, of Q10,000 for each family of the victims, and suspended their political rights for the term of the sentence.  The court considered that they had committed these acts as abuses of their positions as chiefs and members of civil patrols because the victims had refused to join the civil defense patrol.

            In the case of the University of San Carlos students killed by Hunapu forces, sentences were given to 22 police agents for murder and to 14 others, for being accomplices in the execution, and the case opened against Colonel Otto Alfredo Aragon is continuing.

            -A high chief of the National Police and four members of the shock group were sentenced to three years and nine months for abuses against campesinos as they were being removed from lands in Cajola, Quetzaltenango in 1992.  The police chief is the highest official sentenced to date for violations of human rights.  

            3. Secret cemeteries

            Of particular importance in the search for the historical truth about human rights violations during the past decade is the investigation into secret common graves.  During the present administration, that task has received greater support from the government.

            The Fourth Report brought out the importance of the positive attitude taken by justices of the peace in Quiche who used to advantage the techniques of forensic anthropology for their judicial mission.

            Until a short time ago, however, the Guatemalan judicial system had been reluctant to use this technique.  Since the new administration took office, the action by the Guatemalan Forensic Anthropology Team (EAFG), supported by technicians from other countries, has found the government most receptive.  In September 1993, the judicial system brought together 100 staff members including judges, investigators and forensic physicians for a training seminar on exhumation procedures and possible uses of that technique.  Originally the seminar was to be for 30 staff members.

            The major case of a secret cemetery investigated during this period occurred in the village of Rio Negro, Rabinal, Alta Verapaz.  In 1982 this village was inhabited by 600 persons, most of whom were murdered.  A few were able to hide in the mountains.  The waters of the new Chixoy reservoir covered the abandoned huts.  The excavations which were performed on the order of the justice of the peace by the EAFG discovered the cadavers of 170 persons, among them 90 children and 50 women.  This finding was one of the 19 mass slaughters that occurred in the Rabinal area between 1980 and 1983 which took a toll of more than 4,000 dead.  This number was 17% of the population living in the municipality during that time.

            According to local people, the Rio Negro massacres began because the construction in 1981 of the Chixoy hydroelectric plant by the National Electrification Administration (INDE) required the people living in that area to move.  These persons did not want to leave and they had the support of the Peasant Unity Committee (CUC).  That Rio Negro village, which was called a "guerrilla focal point," was the victim of five massacres by army forces and the civil patrols which were being organized during that time.  Charges made by survivors state that in one case, the patrol members abducted mothers and children from the village and then offered some of the children the choice of not dying with their mothers by going to work for them.  Some 15 children decided to save their lives and were held in servitude for a decade by the murderers of their parents.

            Continuing its work in court cases, the EAFG plans an excavation in February 1994 at Plan de Sanchez where some 300 cadavers might be found of persons who were murdered and burned collectively by the army after the women were raped.  For their part, residents of San Andres Sajesbaja, Quiche, reported the existence of a secret grave in the church which was found during church reconstruction work.  

            The Commission believes that this search work should continue with the support and guarantees of different public sector agencies and that all facilities should be given to the courts to continue using the technical and scientific assistance of the EAFG.

            4. Accusations by convicted former military persons regarding institutional structures for violating human rights

            During this period, the Commission has received indirect information from former military persons and others who say they belonged to the military regarding their knowledge of the institutional mechanisms and lines of responsibility of massacres, secret cemeteries and disappearance campaigns.  Some of these claimants have retracted their statements under confusing circumstances and the membership of some of them in the armed forces is denied by the military.

            In September 1993, a person named Julio Crescencio Sam Batres (38 years), who says he was a former specialist in the Guatemalan army, attached to military zone 13-216, headquartered in Cuyotenango, in the department of Suchitepequez, since January 1992, and who was an informant for ten years--according to his own words--revealed the names of chiefs, agents and persons on lists to be exterminated, as well as business people and journalists associated with the repression, and cases of murders and disappearance of suspected guerrillas.  He explained how he had been trained in capturing, torturing and murdering with different instruments.

            The army reacted to those declarations by denying that the presumed G2 agent was listed in the files of the institution.  The army maintained that his words are part of a diplomatic political propaganda plan of the URNG.

            For its part, during its visit to Guatemala, the Commission received direct testimony from several military persons convicted of murder who offered to reveal the names of the responsible persons and the circumstances surrounding hundreds of murders carried out by the death squads, to which they belonged, as well as the intellectual authors who ordered and carried out the murder of Myrna Mack in the Presidential General Staff.[39]

            Noel de Jesus Gonzalez, convicted of the murder of Myrna Mack, as well as another convict, Jorge Lemus, and five soldiers sentenced for the murder of Michel Devine, Francisco Solbal Santay, Tiburcio Hernandez, Oliverio Orellana, Joaquin Alfaro Avila and Daniel Tolon Rodriguez, announced that they were willing to testify in this regard.  According to them, on the next day, two members of the military intelligence force (G2) headed by Captain Sosa Diaz and Claudio Porres interviewed them at the Pavoncito prison and offered them fifty thousand dollars, salaries and light work in the prison to not reveal the locations of the secret cemeteries and the names of the military commanders involved in murders and the death squads.  After the interview, three of them retracted their words since they had not received guarantees of safety from the government.

            In a note to the Commission, the government stated that the Public Ministry had contacted the convicted former military men but that it had not confirmed their charges.  It also gave assurances that these persons had guarantees of safety in the penal institutions where they were housed.

                VIII.  RECOMMENDATIONS

            1.            GENERAL

            a)            Maintain the strictest compliance with the decisions included in the Official Declaration on Human Rights of October 1993, as the basis for the conduct of all state agencies and agents.

            b)            Engage all investigatory and protection resources of the state to assure the life, personal liberty and freedom of expression of the leaders of human rights agencies and social and political interest groups, as well as the press, and guarantees for restoration of the democratic dialogue among different sectors.

            c)            Issue instructions to military and security organizations and civil self-defense patrols to respect the right of free association and right of free speech of the people, and to refrain from intimidating or attacking organizations that serve rural people or which call for better living conditions and compliance with the law.

            d)            End the military control over the actions of the Executive Branch of government which is exercised by Presidential General Staff, either by disbanding it or by redefining its functions, since this staff amounts to an unconstitutional interference with democratically elected authority.

            e)            Recommend to the members of the Legislative Branch that they take the necessary measures to comply with their constitutional responsibilities.  The Commission believes that present state of paralysis in the legislature has a negative impact on its effective action.

            2.            ELECTORAL REFORM

            Take all necessary measures to enhance the authenticity and representativeness of elections, among others, by amending the Electoral Law in such a way as to allow the existence of departmental political organizations with the ability to register candidates for election to congress.

            3.            JUDICIAL GUARANTEES

            A Truth Commission, made up of independent individuals of recognized moral standing and supported by all public institutions, should be formed to make a full investigation and report on past violations of human rights.  This Truth Commission should be formed and should act completely independent of the peace negotiations with the subversive elements.  The search for truth and justice cannot be a pawn of either side; it is an international commitment by the state to the international community and to its own people, its history and its future.

            4.            JUSTICE SERVICES

            a)            The process of appointing judges and magistrates should be revised so that it is not political, and to ensure that lower level judges do not depend on the sponsorship of higher magistrates.

            b)            The appointments should be made on the basis of competition or open and objective examinations.

            c)            The Commission recommends the proposal contained in Harvard Report on the creation of "circuit courts," which would have officers who speak the local language, and to encourage the training of Mayan attorneys.  These circuit courts would perform their work on a rotating basis in the group of villages under their jurisdiction.  They would be supplemented, as in the proposal, by the creating the position of bailiff, a lower ranking court officer who works as mediator in minor disputes and as an assistant in the district court.[40]  The bailiffs would be elected by the community as the contact person with the court system.

            5.            MUNICIPAL AND NATIONAL POLICE SERVICES

            a)            The establishment of legally approved and controlled police services, under the jurisdiction and control of local civilian authorities, and connected functionally to the National Police.  The Commission notes the programs that the Ministry of Government has initiated to institute the Municipal Police and the example of the local civilian police established in Santiago Atitlan, which it recommends be respected.

            b)            At the same time that the municipal police forces are created, the size and budget of the National Police should be expanded so that it can carry out its mission throughout the entire country, and the capacity of the municipal police supplemented.  The National Police should also retrieve the equipment and budget items that were retained by the armed forces but which were for functions that the National Police perform.

            6. THE CIVIL SELF-DEFENSE PATROLS (DACs OR CVDCs) AND LOCAL POLICE POWER

            a)            As presently configured, the patrols should be disbanded through a scheduled plan based on the free and organic decision of the specific local populations.

            b)            The process of developing the municipal police force should be scheduled to begin immediately and should be completed within a reasonable time.  Its start and implementation should be completely independent of the negotiations with the URNG.

            c)            The local police functions should be assumed legally by some time type of municipal police force, created or reinforced in each case as determined by the Law of Municipalities, based on the decision of each community.  The examples that should be taken are the experience in Santiago Atitlan, and the plans to create the municipal police force that the Ministry of Government has started, with the cooperation of international lending and technical sources.

            d)            The decisions regarding the shape that the municipal police forces would take should be made by the people of each municipality within existing legal guidelines or those that are issued specifically for the purpose.

            e)            The municipal police forces should be under local civilian authority and the state should provide the municipalities the funds they need to maintain the force.

            f)            The municipal police forces should be independent in matters within their competence of the central police authority but should be coordinated with that central authority, in accordance with existing rules or those that might be issued for that purpose.  The military authority will have no authority over the municipal police force.

            g)            Immediately and until such time as the patrols are dissolved and replaced by services under civilian authority, strict instructions should be given to their chiefs and members to refrain from any action that might amount to a restriction of the human rights of the local people.  The military authorities that are acting as organ of control over those patrols should be made responsible for compliance with those instructions and should dissolve immediately any patrols that do not follow those instructions.

            h)            The Public Ministry and Office of the National Attorney for Human Rights should offer all guarantees for voluntary individual participation in the patrols until they are dissolved, and should take measures to disband them in the event that the community, in a majority decision, decides to dissolve them immediately.

            i)            If the community freely decides, in an organized, democratic way guaran­teed by the Human Rights Attorney or some other appropriate authority, not to disband the Self-Defense Committee but to convert it into a Development Committee or the like, that Committee must be subject to regulation that places it on an equal footing with all similar civilian associations under the full jurisdiction of the competent civilian author­i­ties and with full respect for the laws and the legally constituted organs of justice and public safety.

            7.            FORCED RECRUITMENT

            a)            In the event of presumed refusal to perform obligatory military service, there should be a legal objection procedure prior to apprehension or forced recruitment.  This would guarantee that the person in question has been properly called to service and has been afforded the possibility of protection under the exemptions in the law.

            b)            Rules should be passed to satisfy the legitimate needs of military conscription in Guatemala, without discrimination, and should afford the opportunity to people who have been traumatized by the internal conflict of recent years to perform public service as a substitute for military service.  The Commission endorses the Human Rights Attorney's recommendation that "it is necessary that the Congress of the Repub­lic discuss and pass a new law on military and public service containing at least careful regulations of the procedure of and conditions for recruitment, accepting conscientious objec­tion as a valid exemption from service, and providing for equal and nondiscrimina­tory treatment of the population of indigenous and nonindigenous communities of limited resources."

            8.            THE PROBLEM OF REFUGEES AND THEIR RETURN

            Demilitarize the repatriation of refugees living in Mexico and their resettlement.  Bearing in mind the historical wounds, the Commission recommends that the intervention and contact between military persons and the returned populations be kept a minimum, and that police services and democratically elected and supervised justice services be established, including, if necessary, the drawing of new municipal boundary lines that would allow effective exercise of political power within the return communities.

            9.            COMMUNITIES OF PEOPLES IN RESISTANCE

            a)            The Commission recommends strictest compliance by the state of the standards and guarantees to which the civilian population and every inhabitant are entitled, even during a situation of struggles against crime.

            b)            The public declaration and information campaigns for both CPRs as well as neighboring populations and people in general and the freedom of movement and trade should be respected and guaranteed by all state agents.  Strict orders should be issued by the army in its function of control over the PACs to see to it that the PACs do not interfere with those liberties or harass the members of CPRs, and the punishments of those who do interfere should set examples.

            c)            The drawing of municipal district lines to guarantee homogeneity of interests of their inhabitants and their political representativeness, and impartial special municipal elections should be held to allow legal establishment of local authorities fully involved in the legal Guatemalan state, with all its obligations, rights and guarantees.

            d)            Special efforts should be made to consolidate the right of ownership and functioning of agricultural cooperatives and the members of the CPRs over their lands, the guarantees for establishment of new legally established production cooperatives, and the withdrawal or compensation by the army from the lands that it occupies to which civilian inhabitants, either as individuals or as groups, have rights.

            10. REFUGEES AND THEIR RETURN AND PEACEFUL RESETTLEMENT

            a)            Reinforce the local democratic authorities of the areas where refugees live, and guarantee that they have access to full participation in elections and in elective positions.

            b)            Guarantee and respect, both by civilian authorities as well as military, all rights of association, free expression, trade and movement of refugees.  Where no representation exists, install a local delegate of the Office of the Attorney for Human Rights, with communications and transportation facilities.

            c)            Emphasize in declarations from the highest national and local authorities, both civilian and military, the willingness to respect the rights of refugees, rights which stem from their status as citizens and from special agreements.  Respect, provide the means (markets, freedom of transportation, public holidays, common infrastructure projects and others) and promote normal trade, social and other relations between the refugees and the inhabitants of nearby areas, including the so-called Communities of Peoples in Resistance.

            d)            Devote the maximum amount of resources and administrative activity to making progress on the development projects carried out by the CEAR and other agencies.  In this sense, put special emphasis on recovering the lands of established cooperatives and encourage the establishment of new cooperatives by expanding the effort of land adjudication and credit allocation to the cooperatives.

            e)            Prevent, investigate and punish, if necessary, any alleged attacks or threats against refugees by military authorities or members of civil patrols from nearby areas.

            f)            Establish with legal and democratic participation by the local people, local police forces under the municipal or departmental civilian authorities and coordinated by the National Police.

            g)            Reduce to the essential minimum required by the struggle against subversion, and in accord with the spirit of the Agreements of Mexico of 1992, the presence or action of military contingents in refugee resettlement areas, bearing in mind the well grounded and legitimate fears of these people because of their experiences in recent years.

            h)            Cancel completely all activities of a police nature carried out by military forces in those areas.

            i)            Undertake all additional efforts necessary to restore the process of collective and organized return and guarantee, at the same time, the possibility of individual or family return.

            j)            Finally, the Commission calls upon the parties in the peace negotiations to establish and consider refugee resettlement areas as truce zones, free of the presence and combative activity with military support of any type, and establish multi-party commissions to verify this matter.

            11. RESPECT FOR SPECIFIC RIGHTS

            a)            Right of property:  The state should take measures to recognize and enforce the long standing or ancestral ownership of lands of Mayan peoples and campesinos in general.  Likewise, massive plans are necessary to facilitate access to land ownership and production for the displaced persons and those relocated because of violence.

            b)            The right of free association:  Maintain and extend progress made by the present administration in simplifying the administrative steps needed to obtain legal personality for trade union associations.

            12. SOCIOECONOMIC AND CULTURAL RIGHTS

            a)            Establish and put into practice, if necessary, policies for investment and public services that avoid special treatment for urban and higher income areas so as to guarantee all citizens equal opportunity to such public services.

            b)            Accelerate the process of ratifying Convention 169 of the ILO on the Rights of Indigenous Peoples, which is currently being reviewed in congress, and adopt immediately the measures necessary to accelerate its fulfillment.

            c)            Implement throughout the country the 1994-95 Health Policy Guidelines prepared by the Ministry of Public Health in cooperation with the Pan American Health Organization.

            d)            Accelerate housing and settlement plans, with particular attention to refugees and internal displaced persons, and take all necessary measures so that the lands assigned to the BANVI for that purpose are distributed without any delay to the beneficiary population.