Clarification Commission in Guatemala Author(s): Christian Tomuschat Reviewed work(s): Source: Human Rights Quarterly, Vol. 23, No.

2 (May, 2001), pp. 233-258 Published by: The Johns Hopkins University Press Stable URL: http://www.jstor.org/stable/4489334 . Accessed: 04/09/2012 17:01
Your use of the JSTOR archive indicates your acceptance of the Terms & Conditions of Use, available at . http://www.jstor.org/page/info/about/policies/terms.jsp

.
JSTOR is a not-for-profit service that helps scholars, researchers, and students discover, use, and build upon a wide range of content in a trusted digital archive. We use information technology and tools to increase productivity and facilitate new forms of scholarship. For more information about JSTOR, please contact support@jstor.org.

The Johns Hopkins University Press is collaborating with JSTOR to digitize, preserve and extend access to Human Rights Quarterly.

http://www.jstor.org

HUMAN RIGHTSQUARTERLY

Clarification Commission in Guatemala

Christian Tomuschat*
I. INTRODUCTION A little more than two years ago, on 25 February 1999, the Guatemalan Commission for Historical Clarification (CEH) handed over the report containing its findings and recommendations to the Government of Guatemala and the former guerrilla organization URNG (Unidad Revolucionaria Nacional de Guatemala), as well as to a representative of the SecretaryGeneral of the United Nations.' The CEH constituted a centerpiece within the comprehensive peace settlement that the Government of Guatemala and the URNG had finalized on 29 December 1996 by concluding the final Agreement on a Firmand LastingPeace.2 Its establishment had already been decided more than two years earlier by virtue of the so-called Oslo Agreement of 23 June 1994.3 This Agreement provided that the CEH shall clarify the human rights violations and acts of violence committed during the armed confrontation that affected Guatemala for thirty-five years.4 The ceremony took place in the National Theater of Guatemala City. Official representatives of the Government and other public institutions, representatives of the URNG, and a broad sample of the population attended. Thousands filled the main hall of the theater, thousands more listened in the lobby, and thousands of others followed the events taking place inside the hall from outside on huge screens put up specifically for
* Christian Tomuschat is a Professor at Humboldt University, Berlin; he is the former coordinator of the Commission for Historical Clarification in Guatemala. 1. See Commission for Historical Clarification Report (copy available at CEH Online Report) (visited 5 Feb. 2001) <http://hrdata.aaas.org/ceh> [hereinafter CEH]. 2. See Agreement on a firm and lasting peace, 29 Dec. 1996, Guat.-U.R.N.G.-U.N., 36 I.L.M. 274 (1997). 3. See Agreement on the establishment of the Commission to clarify past human rights violations and acts of violence that have caused the Guatemalan population to suffer, 23 June 1994, Guat.-U.R.N.G.-U.N., 36 I.L.M. 283 (1997). 4. See Agreement on a firm and lasting peace, supra note 2. Human Rights Quarterly 23 (2001) 233-258 @ 2001 by The Johns Hopkins University Press

234

HUMAN RIGHTSQUARTERLY

Vol. 23

that purpose. The coordinator of the CEH (also the author of this article) held the responsibility of presenting the main findings of the report to the public. Forthe first time in the history of the country, an official body stated that, according to its judgment, genocide had been perpetrated at certain times in certain places during the civil war. Accordingly, emotions ran high. Whereas apparently the President and his Ministers did not view the open language of the CEH with great favor, the human rights organizationsspokespersons for the victims-felt extremely satisfied. The report also found an overwhelmingly positive echo in the Guatemalan press of the next day. Nearly everyone agreed that all expectations had been exceeded. The report itself was originally available only in a limited number of copies in Xerox form. However, a summary of its findings and the full text of its recommendations was printed for the ceremony of 25 February1999 in thousands of copies, not only in Spanish, but also in an Englishtranslation. It was not until the end of June 1999 that the printing process for the full report (in Spanish) was completed. Many free copies were distributed to interested organizations, but the twelve volumes of the report have also been on sale since that time. The report is not a secret document, but can be obtained by everyone at a moderate price. Thus, accessibility of the report is fully ensured. In accordance with the recommendations formulated by the CEH itself, the United Nations Office for Project Services (UNOPS), the UN agency which had managed administrative and budgetary matters for the CEH, also produced in the following months translations of the summary and the recommendations in several Mayan languages.5 Those elements of the population who do not read Spanish, provided they are literate, are also now in a position to inform themselves about the main occurrences during the armed confrontation from 1961 to 1996. One may also note that currently any resurgence of civil war seems to be a rather remote possibility in Guatemala. The URNG has transformed itself into a political party. The use of force to overthrow the governmental institutions of today does not belong to its political vocabulary any more, nor do any other extremist movements exist that would advocate a resort to violence in order to change the current order of things by forcible means. Public peace has become a tangible reality. This does not mean, however, that citizens now live in conditions of peace and security. Unfortunately, common crime is steadily on the rise. The police and criminal justice systems do not seem able to win this uphill battle that currently seems inexorable given the convulsive social situation of the country.

5.

Those languages were: Quich6, Kakchiquel, Q'eqchf, Mam, Tz'utuil, Achi, Jacalteco.

2001

Clarification Commissionin Guatemala

235

II. TRUTH COMMISSIONS-A GENERAL POLITICAL BACKGROUND Truthcommissions have sprung up from almost nowhere in recent decades. Although an impressive number of such bodies were described years ago by Priscilla Hayner,6few of them have truly printed their hallmark on the life of the nation concerned. Alongside the South African TruthCommission, the most prominent are those that were established in LatinAmerican countries after the fall of military dictatorships-as in Argentina, Chile, El Salvador, and Guatemala. Agreement on the establishment of a truth commission, which is entrusted with investigating a criminal past, denotes a fair degree of political maturity of a country. To date, truth commissions have always been instruments of a deliberate policy of compromise. They have not simply been imposed by the winning party after the end of an internal conflict. Rather,the contending parties have generally agreed to have their conduct scrutinized with that of their opponents. Revolutionary movements that overthrow a legitimate government in power are normally not inclined to submit to this type of investigation. On the other hand, if a dictatorial regime is swept away by the forces of democracy, the same reluctance is normally encountered. A total victory vis-a-vis a former ruling elite can be translated into drastic measures, in particular into criminal prosecutions. The background of a truth commission is almost invariably a different one, of stalemate in a political power play. In South Africa, the white minority had to abandon its political supremacy, but it still wielded important factual power, above all in the police and in the army. In Argentina and Chile, the military leaders eventually had to step down, but they still held key positions within the army, making it initially unthinkable to commence criminal actions against the main culprits. In El Salvador and in Guatemala, the truth commissions were set forth in peace agreements between the governments and the guerrilla movements fighting against them. The guerrilla movements were not defeated, yet neither were the armed forces of these two countries.7 It was therefore clear from the outset that judicial proceedings would not be a very effective tool in terms of sanctioning grave human rights violations. Normally the work of a truth commission takes place in a climate of tension. The work of a truth commission never lies in the interest of the main actors involved, who almost inevitably have dirty hands and cannot hope to reap any direct benefit from its revelations. Politically, the main
6. 7. to 1994: A Comparative See Priscilla B. Hayner, Fifteen Truth Commissions--1974 RTs.Q. 597 (1994). Study, 16 HUM. However, it should be noted that the Salvadoran guerrilla forces were much stronger than the URNG during the negotiation of the peace agreements.

236

HUMAN RIGHTSQUARTERLY

Vol. 23

advocates of the establishment of a truth commission have invariably been human rights organizations, in particular movements uniting former victims who feel that at the very least their suffering should be documented. In fact, human rights law is still in its infancy regarding the consequences of human rights violations. International law has incorporated human rights as signposts requiring public authorities to behave in a specific manner, by abstaining from encroaching upon personal freedoms of their citizens and by protecting and promoting their interests where the individual would be helpless vis-a-vis societal pressures. This is a coherent concept as far as the primary duty of performance is concerned. It is less obvious, however, what legal consequences follow from a breach of the primary duty. Domestic legal systems have generally evolved sophisticated legal mechanisms to deal with that situation. Individuals injured by acts harming their rights may claim damages, and in instances of particular gravity, criminal sanctions may be imposed. However, all of these systems are intended for fair-weather periods. When a nation tumbles into the depths of a vicious criminal regime, rejecting the principles of human rights and rule of law, the normal processes cease to operate.8 Years and even decades of injustices may have occurred; and, given the magnitude of the dark balance sheet which constitutes a huge burden for any fresh start, the question arises-what can be done to tackle the past? One of the most attractive choices is to act according to the maxim: let bygones be bygones. Sweep anything unpleasant under the rug. Following this recipe is favored not only by groups whose hands are tainted and who have reason to fear that an objective report may prove damaging to their interests, but also by persons who feel that excessive concentration on the past may deprive a people of the strength to master the tasks of the future. But to pass over in silence grave breaches of human rights, renouncing any societal response, strikes at the very heart of human rights. Passivity then turns into permissiveness. Human rights lose their guiding force. For any society it is ineluctable, in order to save the essence of human rights, to provide a carefully considered answer. This need not be the same under all circumstances, but it must be framed in such terms that the original concept still remains visible. Human rights violations are not just an act of God, nor are they accidents of history, but they are acts attributableto human beings, who are-and should be made-accountable for their deeds. As already mentioned, it is not always possible to rely on criminal proceedings as the main response to injustices of the past, nor would it be

8.

AND INSPIRATION: FIFTYYEARSOF THE UNIVERSAL DECLARATION HUMAN RIGHTS151 OF

See Christian Tomuschat, Human Rights and National TruthCommissions, in INNOVATION (Peter Baehr et al. eds., 1999).

2001

Commissionin Guatemala Clarification

237

just to apply the yardstick of ordinary criminal law to mega-crimes in which entire societies were involved. Becoming enmeshed in networks of inhumanity and brutality, many persons act in ways they would have strongly resisted had a similar choice been put before them in normal circumstances. It remains one of the great problems of the doctrine of penal law to define the standards applicable to persons who were pushed into crime by their superiors and their surroundings. Whatever lowering of normal standards in penal law may be advocated, however, the victims may not be deprived of every kind of protection ex post. At a minimum, victims are entitled to full information about the general developments underlying the violations that they suffered. This is precisely the central idea in the preamble of the Oslo Agreement of 23 June 1994. Its second paragraph speaks of the right of the people of Guatemala "to fully know the truth"about the events of the civil war. To assert this is not to claim that invariably peoples are completely innocent, while governments are the only culprits. It does mean, however, that no government is entitled to hide the truth about its own involvement in a conflict, or the involvement of a predecessor regime. Only on the basis of the full truth can a people learn from the past and immunize itself against the danger of falling into the same trap as before.

TRUTH COMMISSIONIll. THE GUATEMALAN FEATURES ITS SPECIFIC The specific features of the CEH may be examined to determine whether it may legitimately serve as a blueprint for future truth commissions elsewhere in the world, not only in Latin America.9

A. Composition One of the unique characteristics of the CEH was its composition. Made up of only three persons, two of whom were Guatemalan, it had at its head a foreigner. This personnel configuration was a novelty in the short history of truth commissions. Most of the commissions consisted only of nationals of the country concerned. The only exception was the Salvadoran truth

9.

See also Christian Tomuschat, Between National and International Law: Guatemala's Historical Clarification Commission, in LIBERAMICORUM GONTHERJAENICKE 991 (Volkmar Gotz et al. eds., 1998) (for an examination of the specific legal characteristics of the CEH).

238

HUMAN RIGHTSQUARTERLY

Vol. 23

commission, whose members were exclusively foreigners. Under normal circumstances, one would indeed expect that the task of dealing with a criminal past would be entrusted to citizens of the country concerned. There can hardly be any matter as "domestic" as an inquiry into the failures of the operation of a system of governance. Yet, on closer reflection one understands the reasons which led to a different choice in El Salvador and Guatemala. At the time when the peace agreement providing for the establishment of a truth commission was concluded (1991/92), Salvadoran society was still deeply divided. No one seemed able to be absolutely neutral. Almost everyone was counted as a person either of the right or the left, the middle ground having been completely eroded during the long years of fratricidal conflict. Therefore, in order to ensure that findings and conclusions would be as objective as possible, it was felt that nationals of El Salvador should be excluded, all the more so since any person prepared to lend her services in the most objective manner might have run the risk of being put under pressure-or might even have risked her life. In Guatemala, the original plan was to appoint as head of the truth commission the then (1994) moderator of the peace talks, Frenchman Jean Arnault. He was familiar to the two parties, having accompanied them during the long journey from war to peace, and he seemed to possess all the required qualities of diplomatic dexterity, on one hand, and critical intelligence, on the other. Eventually,however, Arnault could not accept the post, because he had been appointed head of the UN operation in Guatemala (MINUGUA). To fill the lacuna, I was chosen to head the CEH. Notwithstanding this personnel change, the institutional logic underlying the composition remained the same. As in the case of El Salvador, the negotiating parties proceeded from the assumption that an element of independence and impartialitywas needed in order to shield the CEHfrom any suspicion of bias. In contrast to El Salvador, it was not deemed necessary to keep Guatemalans completely out of the work of clarification. To their minds, the coordinator would embody the main guarantee of objectivity. A foreigner could not be suspected of pursuing political objectives in working in the service of the CEH. In that regard, a mixed composition seems to constitute a well-balanced model. Attention may be drawn, in this connection, to the fact that the Human Rights Chamber of Bosnia and Herzegovina, which acts as a human rights tribunal, is likewise composed of Bosnians and nationals of other member states of the Council of Europe. Again, the aim is to safeguard the strict conformity of the jurisprudence of the Chamber to recognized international human rights standards. There occurred only one incident where the Government of Guatemala, responding to charges that their cooperation had been defective,

2001

Clarification Commission in Guatemala

239

openly threatened to expel the coordinator on the strength of the Guatemalan Aliens' Law. The government so grossly mismanaged the incident, however, that it rather served to confirm the wisdom embodied in the composition of the CEH. Thus, adding a foreign element would seem to remain an option worthy of consideration in the specific circumstances of any future institution with a similar mandate.

B. Mandate
The final Agreement defined the mandate of the CEH in extremely broad terms. The Commission had the basic task to clarify the human rights violations and acts of violence that occurred during the armed confrontation. The CEH would spell out the results of its investigations in a report addressing all relevant factors, not only internal, but also external. Last,the CEH would formulate recommendations designed to foster peace and national harmony in Guatemala, taking into account its findings. The Oslo Agreement also expressed a number of expectations. It was hoped, in particular, that the recommendations would promote a culture of mutual respect and observance of human rights and strengthen the democratic process. As far as the scope ratione materiae of the CEH's primary responsibility was concerned, the draftersacted with little foresight. Given that Guatemala had lived under different kinds of dictatorships for more than twenty years and that even the years spent under the new Constitution of 1985 were gravely lacking in normal guarantees of the rule of law, it stood to reason that every day, every minute, serious human rights violations were committed. Dictatorships cannot but breach human rights standards inasmuch as any citizen is denied the normal exercise of democratic rights. Therefore, to require that the CEH investigate "the" human rights violations-textually meaning "all" human rights violations committed during the relevant years, provided only that they were linked to the armed confrontation-amounted from the very outset to overburdening the CEH, and preventing it from discharging its mandate in a thorough fashion. No legitimate purpose is served by such far-reaching objectives. A nation that opts for establishing a truth commission wishes to know what went wrong and what were the most serious breaches of standards of law and justice. It needs no lengthy lists of each and every petty detail marring the preceding years of dictatorship. The CEH reflected at length on the dilemma created by its terms of reference. It took due note of the similar difficulties experienced by other truth commissions, in particular the Chilean and the Salvadoran commissions. Eventually, the CEH determined that priority had to be given to

240

HUMAN RIGHTSQUARTERLY

Vol. 23

attacks on life and personal integrity, in particular extrajudicial executions, forced disappearances and sexual violations.'0 This did not mean that other structural violations were totally excluded from the focus of the investigations. The report also contained chapters on deprivation of freedom, denial of justice and attacks on freedom of expression," but its center of gravity focused on violations of basic human rights, where questions of life and death were at issue. Although possibly not fully corresponding to the text of the Oslo Agreement, the interpretationchosen by the CEH is in full conformity with the general purposes of its mandate. Additionally, some clues could even be gleaned from the wording of the relevant paragraphof the Oslo Agreement. On one hand, as already mentioned, the text specifically mentioned acts of violence alongside human rights violations, indicating thereby the general orientation of the inquiries to be carried out by the CEH. On the other hand, the limitation that these acts must be linked to the armed confrontation also suggested that acts or operations enmeshed in a context of violence were to be the primary subject of investigation. In the same tenor were the expectations of the victims who came before the CEH to present their testimony. In particular,they wanted to put on record endless accounts of arbitrariness and lawlessness that had produced hecatombs of dead and wounded, of persons tortured or otherwise damaged for the rest of their lives. The CEH was perfectly aware that a policy of non-respect for human life, culminating in genocide, constitutes a phenomenon that requires further explanation. It therefore concluded that it should provide, on the basis of the facts collected in its report, a comprehensive analysis of the state of Guatemalan society. One of the objectives of the CEH was to make sure that the sad occurrences of the past would never repeat themselves. For this reason, the CEH attempted to accompany its direct findings by a summary of the main features characterizing the development of Guatemalan society even before the outbreak of the armed confrontation. It is in this context, in particular,that general issues of democracy, the rule of law, and the poisoning effect of racism on Guatemalan society since the Spanish conquest were addressed.

C. Time Frame
The time frame set for the work of the CEH also was at variance with any reasonable estimate of the extent of its task. In two short sentences, the Oslo
10. 11. See CEH, ToMoII, supra note 1, at 318, T 1731. See id. at TOMO 81. III,

2001

Clarification Commission in Guatemala

241

agreement said first that the CEH would start its work on the day of the conclusion of the Agreement for a Firmand LastingPeace, and that the CEH would have a period of six months from that date at its disposal, with an option to extend its mandate once for another six months.12 It was clear from the very outset that these requirements could not be met. In the first place, the members of the future CEH had to be chosen after the conclusion of the final Peace Agreement on 29 December 1996; consequently, the CEH could not possibly commence its activities on that same day. Additionally, the three members alone could not do all the work assigned to the CEH. It was necessary, in particular, to hire staff, to rent office space, and to establish local offices in the countryside. These logistical difficulties were not the heart of the matter. An almost incomprehensible contradiction lay in the exigency that "all" human rights violations and acts of violence were to be investigated within a period as short as six months. Even the option of a six-month extension of that period did not remedy the shortcoming. Not even the most perfect organization would have been in a position to discharge its duties to the satisfaction of its clients at such speed. Eventually, the CEH took roughly two years to complete its work. The composition of the CEH started with the designation of its coordinator on 8 February 1997, who then appointed the two Guatemalan members, Otilia Lux de Coti and Alfredo Balsells at the end of February 1997. Actual work started only in mid-April 1997 since the three members of the CEH all had to adjust their lives to the requirements of their new functions. Until the end of July 1997, the CEH was concerned with raising monies and establishing its organization. The investigative work in the countryside began on 1 September 1997 after an introductory course for the staff members had been held during August 1997. By the end of April 1998, the investigative stage of the process came to its close, and from May 1998, work at the CEH's headquarters intensified. First,the information collected had to be processed in a database. Relying on the evidence documented therein, the CEH could then engage in the drafting process. When, in July 1998, it was simply impossible to hand over the report on 31 July 1998 as required in strict application of the rules laid down in the Oslo Agreement, the CEH was able to reach an agreement with the so-called "Comisi6n de Acompanamiento"'3 on a flexible understanding of the deadline. The oneyear period determined by the Oslo Agreement was interpreted as limiting only the time of investigation, whereas the time needed for drafting the report was deemed not to be included in that period. Thus, the CEH

12. 13.

See Agreement on the establishment of the Commission, supra note 3, at 284. This Commission was entrusted with supervising the entire peace process.

242

HUMAN RIGHTSQUARTERLY

Vol. 23

received six more months for the completion of its task. In fact, it almost complied with the new deadline inasmuch as the report was handed over on 25 February 1999. On one hand, one may detect an element of legitimacy in the strict limitation of the time allotted to a truth commission. Precisely after the restoration of peace and democracy, a truth commission has a specific function to fulfill. Its report is to serve as the basis for the restructuringof governmental institutions. Agencies that were nests of crime may have to be disbanded. Mechanisms that failed to provide protection to the citizen may have to be remedied. Individuals who misused their powers must be denied any governmental responsibility. Without this, faith in the new institutions could not be generated. All these grounds militate for swift action. Should the proceedings of a truth commission drag on for years, the public would lose interest in the matter. A report issued after years and years would run the risk of being no more than legal history from the day of its publication. On the other hand, a report must rest on solid foundations. Furthermore, in Guatemala, a formal pledge had been made to the effect that everyone would enjoy an actual opportunity to turn to the CEH, informing it about his or her personal experiences. After an initial period of hesitation, the Mayan population in the hardest hit parts of the country made massive use of the historic chance to bring to public knowledge the sufferings to which they had been subjected. In the Department of Quiche, thousands and thousands insisted on being heard by the investigators of the CEH. The whole undertaking would have ended as a complete failure if the CEH had told these people that, for lack of time, it was unable to grant them a hearing. The investigation was the time of the victims. Only by telling what had happened to them could they hope to regain some part of the human dignity that had been denied them by the perpetratorsof the crimes inflicted upon them, the security forces of the State and the guerrilla organizations. The lesson to be drawn with regard to future truth commissions is obvious. A minimum time period must be allotted to any serious work of investigation. If the aim is to associate the people concerned with the work to be carried out, making the exercise truly democratic, the victims must indeed be given a real opportunity to actively take part in the collection of evidence. However, care must also be taken to establish a tight time frame to ensure concentration of effort so that the result is a genuine consciencesearching exercise. Everyone must feel that his or her personal destiny is at stake. A bureaucratic exercise extending over more than five years would eventually end in general boredom. It will never produce the cathartic effect expected of the work of a truth commission.

2001

Commissionin Guatemala Clarification

243

D. Prohibition of Assignment of Individual Responsibility One of the most controversial features of the Oslo Agreement was its prohibition against assignment of individual responsibility. It was said in the section entitled "Funcionamiento":"Lostrabajos, recomendaciones e informe de la Comisi6n no individualizarin responsabilidades."14 Human rights organizations originally felt that this provision would emasculate any results that the CEH might produce. They believed that a report was useful only to the extent that it unequivocally mentioned the perpetrators of the criminal acts listed by it. This was also one of the major reasons why the Catholic Church decided to establish its own truth commission. It held that the official report of the CEH would, according to all probability, be so timid that it could not make any meaningful contribution to laying the groundwork of a new and better Guatemala. It is self-evident that the interpretationof the relevant terms constituted a tremendous challenge for the CEH. Some human rights organizations claimed that the difficulty could be easily overcome by a strict construction of the words in issue. The individualization of responsibility required a legal assessment. Therefore, if the CEH confined itself to describing in purely factual terms a chain of events that had brought about an instance of death and destruction, it would not trespass over the line demarcating the territory prohibited to it. Consequently, it could be said, for example, that Colonel Gomez Garcia had killed a peasant somewhere in the countryside. This proposition would not constitute a final judicial determination because within a context of penal law, attention would have to be given to a number of additional issues such as the question of intent or negligence, possible grounds for justification, and the issue of mental sanity of the perpetrator, among other reasons. The CEH not only held intense consultations among its members and leading staff, it also consulted a small group of leading Guatemalan jurists. Finally, it decided to opt for a traditional construction of the words "no individualizarin responsabilidades"15in the sense that normally the report would not mention the names of the alleged perpetrators of the atrocities found. This restrictive approach seemed to correspond best to the general thrust of its mandate. Indeed, it had been clear from the very outset that the CEH would not be able to clarify "all" human rights violations and acts of violence

14. 15.

The quoted sentence is translated to read: "the Commission shall not attribute responsibility to any individual in its work, recommendation and report." The translation of the quoted phrase is: "[the Commission] shall not attribute responsibility to any individual."

244

HUMAN RIGHTSQUARTERLY

Vol. 23

committed during a period of thirty-five years, resulting in an aggregate loss of roughly 200,000 human lives. Whenever there were still witnesses who could give detailed information on the tragic events, their knowledge was normally confined to the identity of the victims. In many instances of armed fighting in the countryside, it was extremely difficult to find out whether the acts complained of had been perpetrated by governmental forces or by military units of the guerrillas. Members of fighting units, especially in a civil war, do not normally appear as individuals. They are perceived just as instruments of the power by which they are sent. Furthermore,governmental units often knew that their actions ran contrary to all standards of natural law, decency and morals, and therefore did everything in their power not to leave any traces by which to reveal their identity. In other words, the CEH would have been facing up to an absolutely unmanageable task if its terms of reference had been interpreted as encompassing the duty to determine the identity of the perpetrators of all criminal conduct that might be uncovered. On the other hand, to give the names of the perpetrators of criminal conduct where these names were known would have led to arbitraryresults. Persons who had committed relatively minor offenses might have found their names indicated in the report, while those who had acted from safe positions within the governmental machinery might have left the process untainted, being able to enjoy the cover of criminal anonymity notwithstanding any efforts at clarification. Therefore, an additional difficulty arose. The report of an official truth commission goes far beyond the findings of a nongovernmental organization. Being committed to the rule of law, a truth commission must seek to uphold this basic principle in its own dealings. To name a particular person as the instigator of serious misconduct must be considered to be a sanction which cannot be meted out lightly, without due process of law. Therefore, it would in any event have been advisable to apply by analogy the rules prescribed for penal proceedings in Article 14 of the InternationalCovenant on Civil and Political Rights or in Article 8 of the American Convention on Human Rights.'6Such formalism, however, would have definitively brought to a collapse the tight time budget of the CEH. The CEH would have simply been unable to grant a hearing to every alleged perpetrator of a human rights violation or act of violence which was relevant under the Oslo Agreement.

16.

See International Covenant on Civil and Political Rights, adopted 16 Dec. 1966, G.A. Res. 2200 (XXI), U.N. GAOR, 21st Sess., Supp. No. 16, art. 14, U.N. Doc. A/6316 (1966), 999 U.N.T.S. 171 (entered into force 23 Mar. 1976); American Convention on Human Rights, signed 22 Nov. 1969, O.A.S.T.S. No. 36, O.A.S. Off. Rec. OEA/Ser.L/V/ 11.23,doc. 21, rev. 6 (1979) (entered into force 18 July 1978), reprinted in 9 I.L.M. 673 (1970).

2001

Clarification Commission in Guatemala

245

Thus, it emerged that a specific concept underlay the Guatemalan CEH as defined by the Oslo Agreement. Generally speaking, the CEH was expected to write the pages covering the darkest period of the recent history of the country, exposing institutional failings and weaknesses, but it was not meant to impose sanctions against the culprits involved. In this regard, it was of the utmost importance that the Law on National Reconciliation, adopted a few days before the conclusion of the Agreement on a Firm and Lasting Peace,17 formally provided that the amnesty decreed by it did not apply to genocide, torture, forcible disappearance and other offenses not subject to any statute of limitation or not permitting any "extinci6n de la responsabilidad penal."'8 Penal prosecution was therefore explicitly reserved regarding the most serious crimes. In other words, a clear division of functions was envisaged. The CEH had nothing to do with the determination of the consequences of the armed conflict in the field of penal law.

E. The Lack of Judicial Purposes or Effects CEH's disassociation with the penal system was reinforced by the requirement that the acts of the CEH were to have neither judicial purposes nor judicial effects ("ni tendran prop6sitos o efectos judiciales"). The report was not to convict anyone, not even in an indirect fashion, and its findings could not be taken as constituting the last word on any specific issue. In criminal proceedings, the accused person may at any time challenge the findings of the CEH as to the facts of a specific case. However, it would be totally inappropriate to maintain that the report can never serve as evidence if and when its findings may determine the outcome of proceedings. It is the relevant rules of procedure that must be used to determine whether such indirect proof can be relied upon in a case.

F. The Collection of Evidence

Generally, the way in which a truth commission collects evidence is among its most interesting features. It stands to reason that it must be able to hear witnesses, providing them with an opportunity to add their experiences to the intellectual legacy of the nation concerned. No long commentary is

17. 18.

See Ley de Reconciliaci6n Nacional, Decreto No. 145-96 (18 Dec. 1996) (Guat.). The translation of the quoted phrase is: "extinction of criminal responsibility." See, e.g., Douglass Cassel, Accountability for International Crime and Serious Violations of Fundamental Human Rights: Lessons from the Americas: Guidelines for International & Response to Amnesties for Atrocities, 59 LAw CONTEMP.PROB.197, 223 (1996).

246

HUMANRIGHTS QUARTERLY

Vol. 23

needed to sustain the statement that truth commissions are generally confronted with two types of witnesses: victims or relatives of victims, and perpetrators personally involved in the criminal processes of the past. Whereas victims are quite naturally inclined to speak out, provided they are able to overcome their fears of reprisals, perpetrators do not have the same inclination. In the case of South Africa, perpetrators could earn an amnesty for their deeds if they made a truthfuland complete admission. The Oslo Agreement provided for no such incentive. The only safeguard perpetrators could rely upon was the rule, just commented upon, that the report would not mention names. This safeguard was not fully reliable, because the CEH did not disclose its interpretation of the relevant words before the publication of its report. Consequently, although the number of victims submitting their testimony to the CEH was impressively high, the number of perpetrators prepared to speak about their involvement was as impressively low. Two different classes of persons could be discerned in this regard. First, there were very few instigators who felt deep remorse for what they had done. Second, some members of the security forces came before the CEH because they had the impression that they had been unjustly dealt with by their superiors and that, in particular,promises of rewards made to them had not been honored. The CEHstarted a deliberate campaign, inviting most of the military and police officers who had held high posts during the subsequent dictatorial regimes, to appear before it. With very few exceptions, no one responded to that appeal. The Ministry of Defense showed a clear lack of cooperation, contending that it did not know the addresses of the officers concerned and that it could not undertake to deliver the letters to their addressees. The CEH had to assume that inside the Armed Forces there existed at least an informal consensus that its work should not be supported. In these circumstances, it might have been helpful for the CEH to enjoy subpoena powers. However, it held no such powers. Sending a letter to a potential witness inviting him to appear was no more than a courteous request lacking any potential of enforcement. Nor could the CEHsearch any premises where relevant archives were kept. Likewise, it was prevented from ordering the seizure of evidence in the possession of governmental or other institutions. Under the circumstances, however, it was hardly conceivable that the legal position could be otherwise. According to the logic of the rule of law, any enforceable subpoena should have been made subject to a legal remedy. Necessarily, such remedy would have rested with to the courts of Guatemala. Eventually,therefore, the Guatemalan judiciary would have acquired a power of review over the CEH. Thus, the autonomy and impartiality of the CEH could have suffered serious damage.

2001

Clarification Commissionin Guatemala

247

Proceedings before review bodies would have entailed considerable delays. Furthermore,it had to be borne in mind that, pursuant to traditional thinking, national sovereignty might not be delegated to bodies outside the framework proper of the State. Enabling Guatemalan courts to rule on decisions of the CEH would also have confronted the courts with the issue of a foreigner participating in the exercise of public authority. Given the strong nationalist tendencies of many of Guatemala's institutions, it is by no means definite what answer they would have provided. Therefore, it was certainly wise to refrain from bestowing subpoena powers on the CEH, notwithstanding the final outcome: almost none of those exercising high command in the armed forces or police of Guatemala has made a contribution to the findings of the CEH.

G. The Confidentiality of Witness Interviews The taking of evidence by the CEH had one last remarkable feature. The hearing of witnesses took place confidentially. Apart from the interviewer and the witness, nobody else was present. Thus, the witnesses were assured that nobody other than members of the CEH and their staff would be able to read their declarations. In contrast to what happened in South Africa, the CEH made no attempt to make such hearings nationwide events, the emotions of which could be shared by every citizen. This difference in arrangement is characteristic of the widely different political context. Whereas in South Africa the white apartheid regime had already lost its power bases, in Guatemala there still existed widespread fears that the former power wielders, in particular,members of the Armed Forces and the Patrullas de Autodefensa Civil, would take revenge measures against any witnesses daring to talk about the injustices they had suffered. Fortunately, these forces of the dark were less than successful in bringing unlawful pressure to bear upon the population. Yet, in one instance, women from a few villages appeared before the CEH a second time after making their statements, requesting the CEH not to put them on record. Those who were responsible for the events in issue had threatened them. To sum up, one may note that the rules governing the taking of evidence were tailored to victims who could not yet be sure that with the advent of peace, democracy, and human rights, that the rule of law would prevail not only as the law on the books, but in daily practice. There are certainly better methods to ensure that an investigation gets as close as possible to the truth. But the choice made by the drafters of the Oslo Agreement embodies one legitimate option, namely that it is a report primarily reflecting the voices of the victims.

248

HUMAN RIGHTSQUARTERLY

Vol. 23

H. Budgetary Resources It had been suggested that the CEH needed no less than three and a half months to organize itself and to establish the necessary infrastructure,from mid-April 1997 to the end of July 1997. In fact, the CEH seems to constitute the only example worldwide of a truth commission brought into being without any kind of budgetary resources. Thanks to assistance provided by MINUGUA, the CEHfrom the very commencement of operations, consisted of an Executive-Secretary,a typist, a driver with a car, and three tiny office rooms. But this was all. The United Nations took the view that the CEH, based on an agreement between the Government of Guatemala and the guerrilla organization, was not a UN institution even though the SecretaryGeneral had agreed to appoint the coordinator and to publish the final report. Quite amazingly, the Government of Guatemala also felt that financing the CEH did not come within its responsibility. Consequently, the three members of the CEH had to start discharging their official duties by attempting to raise money from the international community, in particular the countries with diplomatic missions in Guatemala. Fortunately,the first days and weeks were already quite encouraging. Signs of goodwill were received immediately from the Scandinavian countries, the United States, and Canada. However, after that first round, it proved much harder to obtain reliable pledges. The CEH succeeded only in early June 1997 in persuading the Guatemalan government that a substantial contribution on their part was essential, because the work of the CEH dealt with domestic matters of Guatemala. Later,other nations joined the circle of contributors. On balance, it would seem remarkable that no financial support was received by any Latin American country and that Spain, too, was conspicuously lacking. The positive aspect of the lack of budgetary forward-planning was the active engagement of all nations taking an actual interest in Guatemala. Consequently, on the financial side, the work of the CEH became an undertaking of the international community at large. On the other hand, the Guatemalan example can hardly be recommended as a blueprint for future truth commissions in other countries. Throughout its operation, the CEH was under the threat of financial collapse. Even after pledges had been made by friends of Guatemala, it could at no time be taken for granted that the monies required for paying, in particular,office rent and the salaries of staff members of the CEH would arrive in due time. For example, the contribution Guatemala had pledged to make took six months to appear in the CEH's account. All in all, a lot of energy was wasted on keeping the organization running. In all instances, the simple rule should apply that a nation desiring to look into its past must defray the costs of such an endeavor. It was almost a miracle that the international community-a

2001

Clarification Commissionin Guatemala

249

selected group of friends of Guatemala-joined to assume the financial burden entailed by the operation of the CEH. One may wonder whether on future occasions the international community will be prepared to demonstrate the same kind of generosity. IV. COOPERATIONWITH OTHERACTORS In the Oslo Agreement, the two sides had committed themselves to cooperating with the CEHfor the fulfillment of the objectives of its mandate. Such cooperation seemed absolutely indispensable, given that the CEH had to start from square one, without any archives or other written materials, with its main source of information being the testimonies provided by witnesses.

A. The Guatemalan Government Very soon after the commencement of its investigations, in September 1997, the CEHdirected a test letter to the Guatemalan President, requesting him to furnish it with detailed information about four of the most spectacular cases of forced disappearances in the history of the country.19The series started in 1966 with the abduction of thirty-three leaders of the Partido Guatemalteco de Trabajo,the Communist party at that time. According to the findings of the CEH,20 all of them were killed after having been interrogated under torture. In 1980, in two distinct operations on 21 June and 24 August, between thirty and forty trade union leaders were kidnaped and put to death in a similar fashion.21 In 1989, while the new democratic Constitution was already in force, security forces caused the disappearance of or killed eleven student leaders of the country's main university, the Universidad de San Carlos.22These were the test cases par excellence. However, the CEH failed to receive any substantial response to its request for information. It was informed by the President that he had transmitted the letter to the Minister of Defense.23 There, the letter "got lost." Finally, when the Minister of Defense had retrieved it, he chose to transmit it to the Minister for Internal Affairs, who sent it to the Head of Police. It is no wonder that not even the tiniest piece of substantial information could be found. The CEH received a

19. 20. 21. 22. 23.

See See See See See

CEH, TOMO supra note 1, at 36. XII, id. at ToMoVI, 89-98. id. at 183-91. id. at 223-33. id. at TOMO 46 (letter of 18 Sept. 1997). XII,

250

HUMAN RIGHTSQUARTERLY

Vol. 23

file of a few pages from which a story emerged that, after the first disappearances, the police had sent agents to the employers of the victims, inquiring whether their employees had indeed disappeared. Not the slightest effort, however, was made by the Government to clarify what had actually happened.24 A few months after the handing over of the report a socalled "Diario militar" emerged, a logbook in which a unit of the security forces had registered in an evil bureaucratic style the names and data of persons unlawfully arrested, tortured, and put to death. This find demonstrated persuasively the existence of rich materials pertaining to the period of lawlessness and arbitrariness.The President may not have had the real power to unearth such sources of information, but his manner of handling the situation demonstrated that he was in no way interested in making a substantial contribution to the process of clarification. The Ministry of Defense also denied the CEH information on the conduct of operations during the worst years of the armed confrontation, when tens of thousands of Mayans lost their lives. According to normal standards as they are practiced in the armed forces of any country, commanders are required to report on any combat operations after the end of an engagement. The responsible military representatives, however, told the CEH that not a single document of that kind was on file in the military archives. This contention was false. At the beginning of the investigation, a staff member of the CEH happened to find in the headquarters of one of the regional military zones an evaluation paper assessing ex post certain fighting activities of that epoch. Immediately after that discovery, the Ministry of Defense prohibited all direct assistance by regional commanders. All requests for information had to go through a centralized channel. This channel proved conspicuously unfruitful. The CEH succeeded in getting access to a number of prospective annual campaign plans and some fairly insignificant statistical figures. But at no time was it provided with any document in which a commander gave an account of the operations of his units during the armed confrontation. On the whole, therefore, one may characterize the contribution made the Government of Guatemala to the process of clarification as next to by nothing. In particular, the armed forces pursued a deliberate strategy of obstruction without admitting this. Originally, the military mainly contended that the CEH had no right to see their archives, because most of the information was classified as secret. When the CEH protested against this one-sided interpretation of its legal position, criticizing it as an attempt to frustrate the fulfillment of its mandate, the armed forces changed their

24.

See id. at 136 (letter of the CEH to the Guatemalan President of 19 Feb. 1998).

2001

Clarification Commission in Guatemala

251

strategy.They confined themselves to contending that the archives consisted of a black hole for the period under investigation by the CEH. Given the fact that one of its staff members had come across a number of relevant documents in one of the regional command centers, the CEH was never able to convince itself that these claims by the leadership of the armed forces were true. It is significant, as well, that the armed forces did not admit with respect to a single case that their units had acted wrongly, violating the rules that should have been observed even in an internal armed conflict. Even more impenetrable were the secret services, among them, in particular, the Estado Mayor Presidencial. Through many of the cases investigated in detail, the CEH demonstrated that within the central power structure of the state, somewhere under the control of one or more of the President, the Minister of Defense, the General Staffs of the Armed Forces, the Minister of the Interior, and the Chief of Police, specific services had operated whose general motto was to be prepared for anything. Anything, including forcible disappearances, murder, and torture. Legality must have been a word of derision for those within these services. Although in Guatemala everyone knows some of the culprits by name, the CEH was unable to shed clear light on the mechanisms at the heart of the evil and crime. None of the persons involved in planning and ordering acts of state terrorism should enjoy a safe haven in the United States. It stands to reason that a truth commission needs better means of procuring evidence. In no case should it be barred from access to governmental archives. Access to documentary information is entirely different from quasi-judicial powers to subpoena potential witnesses. As far as alleged perpetratorsof crimes are concerned, any approach based on the rule of law must respect that elementary standard of natural justice according to which no one can be compelled to testify against himself. Governmental archives, however, pertain to the public domain. It may be necessary to develop specific rules to protect the legitimate rights of persons mentioned in such archives as having committed crimes or other immoral acts. The specific condition of Guatemala can only be explained by the fact that, during the long years of democratically elected presidents from 1986 onwards, the Armed Forces and the Secret Services, which had lost any sense of justice and equity, were largely able to maintain their roles as major power centers of the country. In any event, from 1997 to 1999, President Arz6 did not care to come to the assistance of the CEH. This obvious lack of interest in complying with the duties imposed upon him and his government by the Oslo Agreement will remain one of the black stains on a presidency that, otherwise, was not totally devoid of positive achievements.

252

HUMAN RIGHTSQUARTERLY

Vol. 23

B. The Guerrilla Forces Guerrilla forces cooperated in a far more productive way with the CEH. Whereas the CEHcould hold only formal meetings with the armed forces, at which normally a liaison officer listened politely to questions put to him without giving any answers, it was able to organize a considerable number of working meetings with the commanders of the URNG. With regard to a number of incidents, the guerrilla organization openly acknowledged its responsibility. In particular, it admitted that one of its units had to shoulder responsibility for the Aguacate massacre, where twenty-two farmers were extrajudicially executed for reasons not totally clarified.25Many questions put to the guerrillas received no answer. Nonetheless, they took some significant steps to comply with their duties under the Oslo Agreement.

C. Other States As far as other states are concerned, the CEH enjoyed the active support of the United States which made available to it numerous documents from different departments, including the Department of State, the CIA, the Pentagon, and others. According to competent outside observers, this was only a tiny cross-section of the documentation on Guatemala. Nonetheless, the documents released proved extremely helpful in confirming some of the conclusions for which definitive proof was otherwise lacking. No other country felt committed to respond to letters requesting information on the role played by their respective governments in providing assistance to Guatemala during the time of the armed confrontation. Israel replied that there had never been any contacts of that kind. Although the CEH had a considerable number of reports in books and articles on the cooperation between Guatemala and Israel, it felt that it should not dwell on those "external factors," because the reliability of that information was questionable and could not be verified.

V. LASTINGEFFECTS THE TRUTH COMMISSION OF It is difficult to assess the lasting effects that the work of the CEH will have in the history of Guatemalan society. Fromthe outset it may be said that the two years during which the CEH was in operation proved extremely

25.

See id. at ToMoVI, 81-88.

2001

Clarification Commission in Guatemala

253

beneficial for the country. Everyone knew that an impartial body was actively engaged in attempting to find out what had actually happened. This put all the institutions of the state under pressure. They realized that, more often than not, their record had been abysmal. Therefore, without giving their active cooperation, they at least showed a friendly face. At no time were members of the CEH threatened, nor did they receive any death threats, which in Guatemala is quite exceptional for a delicate function susceptible of impairing vested interests. The CEH, on its part, did its best to make its presence felt. Its members appeared on radio and TV, gave newspaper interviews, and made statements in workshops organized by human rights organizations. Without disclosing any of the substantive results they had obtained, they talked freely about the methods applied and objectives pursued. In preparation for formulating its recommendations, the CEH even convened a social forum in which all interested organizations were given the opportunity to express their views as to the desirable contents of the recommendations. Thus, the CEH became an integral part of the political life of the nation. It did not withdraw into splendid isolation, as the Salvadoran commission saw fit to do in the particular circumstances of persisting violence in El Salvador. The handing over the report was a glorious moment in the life of the Guatemalan nation. It seemed that something great had been achieved, namely a truly objective assessment of a period of history which until then had lain buried under mountains of lies and prejudice. However, the euphoria that the ceremony of 25 February1999 aroused was no permanent factor, capable of determining the future course of national policies. On 16 March 1999, the Government of President Arzu, in a newspaper advertisement, made public its first response to the report and the recommendations by the CEH.26In a nutshell, it declared that nothing needed to be done. The CEH had recommended, in particular, that the President, in the name of the state of Guatemala, express public apologies to the people of Guatemala for the acts described in the report, and assume responsibility for the human rights violations connected with the armed confrontation. This suggestion was rejected, on the ground that on 29 December 1998, on the occasion of the second anniversary of the conclusion of the final Peace Agreement, the President had already expressed some form of regret, although this had been done clearly-and deliberately-before the report had revealed the magnitude of the atrocities committed. Likewise, the government contended that there was no need to purge the armed forces since such a process had already taken place-although in a process

26.

This first response (Posici6n inicial) was the only one ever made by the Arzu Government.

254

HUMAN RIGHTSQUARTERLY

Vol. 23

unknown to the public at large, in the absence of any open debate on the issue. Furthermore,the government also declined to establish a follow-up mechanism as recommended by the CEH. Lastly, no consequences resulted from the findings of the CEH that genocide had been committed, notwithstanding the obligation incumbent upon Guatemala as a state party to the Genocide Convention of 1948 to take measures of prosecution in case persons charged with genocide are present in its territory.Only one proceeding was pending at the time of the submission of the report on account of the massacre at Dos Erres,one of the most frightening occurrences of the armed conflict, where 1 78 persons had been killed, mostly women and children.27As of May 2000 this proceeding had yet to come to its end.28 Otherwise, however, the public prosecutor's office took no active steps to institute proceedings, but was pushed by elements of civil society to examine a number of cases in point. In April 2000, press reports29indicated that the defense of the accused in the Dos Errescase had raised a complaint against six ex-guerrillas allegedly involved in the massacre of El Aguacate.30On 3 May 2000, forty-eight survivors of a number of massacres perpetrated in the departments of Baja Verapaz and Quiche filed a complaint against the former President Romeo Lucas Garcia, his brother Benedicto Lucas Garcia, former Chief Commander of the Army, and the former Minister of Defense, Luis Rend Mendoza Palomo.31 More effective than all the proceedings before the judicial institutions of Guatemala may turn out to be a proceeding initiated by the Spanish Audiencia Nacional on 27 March 2000 against former head of State Rios Montt in particular, during whose time in office the worst massacres were committed by the armed forces and the security forces in the Mayan regions of the country.32The Spanish judge pointed out that the facts submitted to

27. 28.

29. 30. 31. 32.

See CEH, Tomo VI, supra note 1, at 397. Efforts to prosecute in a forum outside of Guatemala have been made as well. In December of 2000, the Plenary of the Spanish Audiencia Nacional rejected the argument that Spanish tribunals had universal jurisdiction for the prosecution of genocide, expecting the Guatemalan judicial system to conform to its duty under the Genocide Convention to commence proceedings against alleged offenders. However, this ruling applies "en este momento," leaving open the possibility that Spanish tribunals could examine the matter in the future. See Spanish Court Says It is Not Competent to 13 PRESS-AGENTUR, Dec. 2000 (LEXIS, Judge "Genocide" in Guatemala, DEUTSCHE Newsgroup file). See Elder Interiano & Julieta Sandoval, Masacres: Denuncian a seis ex guerrilleros, PRENSA 15 LIBRE, Apr.2000. See CEH, Tomo VI, supra note 1, at 81 (for an account of that massacre). 2 See Elder Interiano, Plantearaindenuncia contra Lucas Garcia, PRENSALIBRE, May 2000. See La Audiencia Nacional Acepta la Querella de Rigoberta Menchu por Genocidio en Guatemala, EL PAis, 28 Mar. 2000, at 8. Besides him, seven other persons are being investigated, among whom are again the two brothers Lucas Garcia.

2001

Clarification Commission in Guatemala

255

him by Nobel prize winner Rigoberta Menchi, showing the passivity of the competent judicial authorities of Guatemala who were not fulfilling their duties, motivated him to start an investigation."3 To sum up, the official reaction was and still is fairly negative, and the victims' organizations have not been not strong enough to insist on faithful compliance with the recommendations. On the other hand, the United States Government was more generous in responding to the findings of the CEH. By chance, President Clinton made an official visit to Guatemala barely two weeks after the release of the report, on 10 and 11 March 1999. At a meeting with representatives of Guatemalan civil society, he said: Forthe UnitedStates,it is important I stateclearlythat supportfor military that forcesor intelligenceunitswhich engaged in violentand widespreadrepression of the kinddescribedin the . . . reportwas wrong,and the UnitedStatesmust not repeatthat mistake.We must,and we will, instead,continueto supportthe peace and reconciliationprocess in Guatemala.34 Of course, these words could have been formulated in a much more straightforwardmanner. To acknowledge a "mistake" is much less than to assume responsibility. Nonetheless, the statement by the President of the United States shows that Washington has evolved a different conception of the relationship with its neighbors to the South and that it would not, once again, sacrifice basic values of its constitutional system in order to combat imagined threats to US hegemony in the Western hemisphere. Following a resolution of the Italian Senate of 17 June 1999, the Italian government suspended all measures of development assistance as long as the Guatemalan government remained unwilling to implement the CEH's recommendations. The fourteen other EU countries did not follow the Italiangovernment's step. Then, in the second half of 1999, attention shifted to the forthcoming parliamentary and presidential elections. Interest in the report of the CEH faded. However, the newly elected President, Alfonso Portillo, declared during his campaign that he would use his best efforts to carry out the recommendations. On the strength of that pledge, he was able to win over Otilia Lux de Coti, one of the two Guatemalan members of the CEH, to join his cabinet. She will certainly act in a watchdog capacity to ensure that the recommendations become a living reality. However, as late

33.

34.

As indicated in footnote 28 above, this proceeding has come to a halt for the moment, but if prosecution is not effective in Guatemala, Spanish judges are prepared to take up the matter again. The tribunals of other countries, for example the US courts, might serve as a forum for the prosecution of persons responsible for the massacres. The Spanish decisions make clear that criminal responsibility for occurrences in Guatemala has become a matter of international concern. AND DOVES: GUATEMALA'S SUSANNEJONAS, OF CENTAURS PEACEPROCESS 128 (2000).

256

HUMANRIGHTS QUARTERLY

Vol. 23

as April 2000, human rights organizations have manifested that not a single element of the recommendations has indeed been put into practice."5 Lastly,the comment may be made that one should not be too worried about the official response to the report of the CEH. It was foreseeable that the political establishment of Guatemala would not be happy with the recommendations and that they would attempt to play down the work of the CEH as much as possible. On the other hand, the two comprehensive documents about the history of the armed confrontation, the CEH's report "Guatemala Memoria del Silencio"36and the report "Nunca Ms"'37submitted by the Catholic Church in April 1998, cannot be talked away. Given that they have reached largely similar conclusions, no doubts remain as to the grim reality of the armed confrontation. Guatemalan society, in particular those who for decades wielded the strings of power, as well as the guerrilla leaders, cannot escape questions about the phenomenon of dehumanization which held their country in its grip for decades. It was the primary task of the CEH to document, in the most sober fashion, the atrocious consequences of the conflict. Additionally, it has offered some explanations. Hysterical anti-communism combined with traditional patterns of resorting to violence to solve any problem. Racist tensions between the two main communities added to a climate of lawlessness. Quite obviously, Guatemala has never, up until the present time, known the advantages of the rule of law, the "Estadode derecho." All this is now on the agenda. The facts cannot be hidden any more. No one may contend that the accounts of untold death and suffering in the highlands are just figments of imagination. The armed forces have lost all credibility for their mythical claim to have saved the country from left-wing dictatorship, and the guerrilla forces also have had to acknowledge a reality that did not show them solely as knights in shining armor. Thus, the history of the armed confrontation has become transparent. The ground has been cleared for deep-going reforms. In fact, President Portillo has pledged to abolish the secret service Estado Mayor Presidencial. This is only one modest step, but not an insignificant one. It was hoped that, in addition to clarifying the relevant facts, the CEH would also lay the foundations for national reconciliation. At this juncture, no answer can be given as to whether the Guatemalan nation has found a better psychic equilibrium as a result of being (fairly)fully informed about the strategies pursued by the warring parties. Throughout its history, from

35.
36. 37.

See Gobierno entreel bien y el mal, PRENSALIBRE,9 Apr.2000.

See CEH, supra note 1.
DEL NUNCA MAS: INFORME PROYECTO See CATHOLIC OF CHURCH,ARCHDIOCESE GUATEMALA, GUATEMALA, RECUPERACION LA MEMORIA DE HISTORICA INTERDIOCESANO (1998).

2001

Commissionin Guatemala Clarification

257

the days of the Spanish conquest, Guatemala has been a divided country. At no time was a real effort made to forge a nation uniting all the inhabitants of the country. Far into the twentieth century, the ruling elites saw themselves as constituting a Hispanic nation within which the indigenous population had no true right of abode. It would now seem that the true challenge to the Ladino group of the population is to acknowledge that the racist ideology that has pervaded Guatemala for centuries has been one of the main reasons for the ruthless treatment of the Mayan communities.38 It is a bold assumption that peace and national harmony may ensue from the revelation of the truth in the form of a gloomy picture. And yet, the Mayans in Guatemala do not claim revenge, provided that the state openly admits the wrongs done. Human dignity must be restored to the victims. Their suffering must be acknowledged. If, by contrast, the power elite should attempt to evade its responsibility by continuing to deny the reality of what the CEH has disclosed, separatist initiatives might spring up. The Mayan communities might feel that within a state dominated by the Ladino group of the population they will never be accorded their rightful place, as determined by the democratic principle of equality of all citizens. Fortunately,the general international climate has profoundly changed. Nobody can pretend that the fight against communism must be the primary goal of the state machinery. Again, as during the late forties, Guatemala is able to benefit from a worldwide consensus to the effect that every society should build its government around such key concepts as democracy, human rights, and the rule of law. Of course, a culture of peace requires more than an act of legislation. All societal groups must become convinced of the necessity to settle disputes, even those involving fundamental divergences, according to mechanisms determined by law. The sense of exhaustion left behind by more than three decades of armed confrontation, whose cruel features have been described in the reports of the two truth commissions, certainly helps towards the acceptance of peaceful ways and means to overcome societal disputes. It is highly improbable that either the armed forces or a new guerrilla force would again dare to act as ruthlessly as in the past, lacking the ideological justification which was so lightly claimed for many decades, until the great turnaround in East-Westrelations. There is a danger, however, that Guatemala might miss the opportunities for change that it enjoys now, particularly with the new government. The country is mired in so many day-to-day problems, ranging from common crime to education and health, economic difficulties, population increases with high demands on social infrastructure,and natural disasters,

38.

It should not be overlooked, however, that other communities besides the Mayans were the victims of the armed confrontation.

258

HUMAN RIGHTSQUARTERLY

Vol. 23

that it may not find the moral force to introduce the reforms required. Indeed, any reform is a protracted process. Societies are like big ships on the oceans, preferring to continue on the course which they have embarked upon. We are of the firm conviction that Guatemala does have the necessary capacity to master its future. It must start soon to tackle its deepseated problems, benefitting from the fact that the reports of the two truth commissions have lifted all taboos.