OEA/Ser.L/V/II.61 CHAPTER II (continued)
20.
The Commission received the visit of a mission from the Government of
Guatemala to which we referred in the Introduction (E.4). In this paragraph the
aspects of the presentation and of the documents provided during the visit with
respect to the Courts of Special Jurisdiction and the death penalty are
considered.
21.
In this respect, the Government of Guatemala affirmed that the
reservation expressed with regard to Article 4, paragraph 4, of the San Jose
Pact allows it to regulate and legislate the death penalty for common crimes
related to political crimes after the Convention went into effect, imposing the
maximum penalty, as it had been doing all along, to crimes which did not carry
capital punishment at the time the Convention went into force, maintaining that,
otherwise, the reservation would lack any purpose.
22.
The Inter-American Commission on Human Rights considers the arguments of
the Government of Guatemala to be unsatisfactory, since the reservation
expressed by that government, being a reservation expressed with regard to a
human rights treaty, must always be interpreted to be restrictive. The
Inter-American Court of Human Rights has so stated in its Advisory Opinion Nº
OC-2/82 of September 4, 1982, pointing out the special nature of human rights
conventions which differ from the usual multilateral treaties.11
23.
In that sense a reservation can only be interpreted in its most
restrictive meaning, and in no other manner. Thus, contrary to what Guatemala
maintains in its position, the scope of its reservation is limited by the very
terms of Article 4, paragraph 4, and cannot be extended, as the Guatemalan
position intends, to other dispositions contained in Article 4 of the
Convention.
24.
Besides, paragraph 4 of Article 4 of the Convention, to which Guatemala
expressed reservation, specifically states that: “Under no circumstances can
the death penalty be imposed for political crimes or common crimes related
with political ones”, thus, the Commission believes that the reservation
expressed by Guatemala would authorize it, at most, to impose the death penalty
for common crimes related to political ones, which were already sanctioned with
that penalty in its legislation, but not to others which, at that time, did not
carry such penalty. This, and no other, is the meaning of the reservation.
25.
In addition, the Commission considers that the determination of a
government to impose the death penalty is subject to several conditions which
emerge from the text of the Pact of San Jose, given the fact that human rights
conventions must be interpreted by their objective which is none other than to
primarily protect the rights of human beings, from infractions by the States. As
it has already been established in modern international law the provisions on
human rights are jus cogens, that is, imperative law, and its derogation
must be duly and precisely founded12
which does not occur in the case being analyzed here.
26.
In that sense, the text of the reservations must be interpreted to mean
that Guatemala could—if other conditions are given—impose the death penalty
for common crimes related to political ones which already carried that penalty
in its laws at the time of ratification of the Convention. But as far as crimes
which did not carry that penalty after Guatemala ratified the San Jose
Convention, the IACHR finds that if the death penalty is imposed by that
government, it blatantly violates paragraph 2 of Article 4 of the Convention
because the final part of that disposition categorically states that “nor (the
death penalty) will its application be extended to crimes which do not presently
carry that penalty.”
27.
Consequently, with respect to crimes which have become punishable with
the death penalty—as for example those established in the “Law of the Courts
of Special Jurisdiction” enacted by the government of General Ríos Montt on
July 1, 1982—that did not carry that penalty in the legislation in force at
the time of ratifying the Convention, they cannot legally be punished with the
death penalty because Guatemala did not express reservation to paragraph 2 of
Article 4 of that international instrument and because no legal basis is
provided for the connection of the political crime and the common crime. In
other words, it would be necessary, in order to impose the death penalty for
those crimes, that the connection between one crime and the other be
established, which has certainly not occurred here since neither the political
crime nor the connection with the common crime have been defined. All this puts
in evidence the infraction with respect to the obligations contracted by the
Government of Guatemala under the American Convention on Human Rights.
28.
Finally, as pointed out in this report with respect to the Courts of
Special Jurisdiction,13
the death penalty has been imposed by decisions handed down by those Courts,
whose establishment and functioning are incompatible with the San Jose
Convention, because they violate the Convention's norms relating to due process,
and therefore, such a serious penalty, imposed under those circumstances,
constitutes an unjustified transgression of that Convention.
29.
At its 59th session, the Inter-American Commission on Human
Rights analyzed with due care the exchange of correspondence that occurred
between Dr. Eduardo Castillo Arriola, Minister of Foreign Affairs, and the
Commission regarding the interpretation of the last part of Article 4, paragraph
2 of the American Convention on Human Rights, as well as the document delivered
by Messrs. Jorge Luis Zelaya Coronado, Mario Quiñonez and Gustavo
Santiso-Galvez, Ambassador of Guatemala to the White House, the United Nations
and the OAS, respectively, at the meeting held with the Commission on April 8,
1983.
30.
It was obvious from the analysis that there is a clear juridical conflict
between the Commission's interpretation of the aforementioned Convention's
provisions and the interpretation held by the Guatemalan Government. In view of
this discrepancy, the Commission decided to ask the Inter-American Court of
Human Rights for an advisory opinion by virtue of its powers under the
aforementioned American Convention on Human Rights, so that this agency would be
precisely the one to establish the scope and interpretation of the provisions in
dispute.
31.
Based on the foregoing and bearing in mind that the rights in question
directly affect the lives and integrity of individuals, the Commission, upon
informing the Government of such decision in a note dated April 15, 1983,
formally asked that implementation and imposition of the death penalty be
suspended in Guatemala while the Inter-American Court of Human Rights decided
upon the scope and meaning of Article 4, paragraph 2 of the Convention.
32.
On September 8, 1983, the Inter-American Court of Human Rights, first
unanimously rejecting the procedural objection made by the Guatemalan
Government, declared itself competent to issue the advisory opinion requested by
the Commission, which is as follows:
a) In answer to the question
1. Can a government apply the death
penalty for crimes for which such penalty is not contemplated in its domestic
legislation at the time the American Convention on Human Rights entered into
effect for the state?
The Court unanimously indicated
That the Convention absolutely prohibits amplification of the death
penalty and that, consequently, the government of a state party may not apply
the death penalty for crimes for which it was not previously contemplated in its
domestic legislation, and
b) In answer to the question
2. Can a government, on the basis of
a reservation made at the time Article 4, paragraph 4 of the Convention was
ratified, pass legislation after the Convention went into effect imposing the
death penalty for crimes which did not carry that penalty when the ratification
took place?
The Court unanimously stated
That the reservation limited by its own text to Article 4.4 of the
Convention does not allow the government of a state party to pass legislation
subsequently in order to extend application of the death penalty to crimes for
which it was not previously contemplated. D.
Violence in the rural areas of conflict
1.
Before analyzing the human rights situation in the rural areas of
conflict, the Commission believes it useful to clarify that, according to
statements by different government officials, areas of conflict are those parts
of the territory where guerrilla groups operate and where, consequently, the
government has considered its intervention necessary through the regular army of
the Republic to, on one hand, combat and exterminate the guerrillas, and on the
other hand, defend the population of those areas by offering protection and
assistance while several programs get underway, among them and in particular,
the “Guns and Beans” Program and the one called the “3 Ts”, Techo,
Trabajo y Tortilla (Roof, Work and Tortillas).14
2.
As the Commission indicated in its previous report on the human rights
situation in Guatemala,15
violence in the rural areas of conflict, which became more and more frequent
during the regime of General Romeo Lucas García, has shown characteristics of
brutality and barbarism by the massive assassination of peasants and Indians
with guns, machetes or knives; the bombing and machine-gunning of villages by
land and air; the burning of houses, churches and communal houses as well as
crops.
3.
Before initiating its on-site observation in Guatemala, information and
complaints reaching the Commission indicated that the situation in the rural
areas of conflict remained the same after the coup d'etat of March 23,
1982.
Repression was making itself felt with the same intensity and utilizing
the same methods. According to this information and the complaints, in numerous
villages, particularly in the Department of Huehuetenango, El Quiché,
Chimaltenango, San Marcos, Alta and Baja Verapaz, there had been killings of
peasants and Indians by the Army, whose patrols, in combating the guerrillas,
had gone into the different villages spreading death and destruction.
In those areas, added the sources, the climate of terror and insecurity
is such, that peasants and Indians of the different villages stricken by panic,
have chosen to abandon their houses and possessions and taken to the mountains
where they live with their families in the open, suffering from hunger, cold and
disease, or move to other populated centers where they can feel more secure, or
crossing the country's borders seeking refuge in neighboring countries,
primarily Mexico and Honduras.16
4.
Among the documents already in the hands of the Commission and which
described the situation above, one which, due to the importance and integrity of
the organization issuing it, has merited special consideration by the IACHR has
been the Pastoral Letter released by the Episcopal Conference of Guatemala in
which the bishops condemn the killings of Indians and peasants which had been
taking place until the date of the letter's publication on May 27, 1982. In
that Pastoral Letter the Guatemalan bishops state, among other things:
With deep sorrow we have learned and have been able to verify the
suffering of our people due to these massacres about which the mass
communication media has already informed. Numerous families have died vilely
assassinated. Not even the lives of old people, pregnant women and innocent
children were spared.
And further on they add:
Never in our national history have we reached such serious extremes.
These assassinations are already in the genocide category. We have to recognize
that these incidents are the biggest contradiction to the divine commandment:
“Thou shall not kill”.
5.
Although the Commission acknowledges the undisputed seriousness of that
source as well as that of some human rights organizations, recognized by their
objectivity, which in general coincide in describing a situation of generalized
violence in the rural areas of conflict where disregard for human life prevails,
the Commission wishes to point out that one of the major difficulties it has
encountered in determining the facts being presented in this section has been
the abundance of contradictory or not sufficiently substantiated information.
6.
Considering these circumstances, the Commission tried to directly,
through contacts with the population of the zones in conflict, find out the
truth of what had taken place. To that end, during its on-site observation in
Guatemala, it divided itself into several sub-commissions which with the
assistance of army officers and government officials, visited several cities,
villages and towns in the departments of El Quiché, Huehuetenango and
Chimaltenango.17
7.
Some time later, with the knowledge of the Government of Guatemala and
the previous permission of the Government of Mexico, two members of the IACHR
Executive Secretariat traveled to the Mexican state of Chiapas, bordering on
Guatemala, for the purpose of receiving testimony of Guatemalan Indians and
peasants who have arrived and continued to arrive by the thousands to that
region. The members of the Executive Secretariat covered most of the
Mexican-Guatemalan border visiting the refugee camps Union Juarez, Aguatinta,
Cuaehetemoc, Benito Juarez, Boca Chajul and Puerto Rico, interviewing numerous
persons coming from different villages or localities in Guatemala.
8.
The Commission is aware that in spite of the enormous advantage that this
method of receiving testimony directly from those affected offers, this is not
free of difficulties and limitations. Thus, on one hand, it is obvious that the
presence of the helicopter pilots, all army officers without whom the Commission
could not have visited remote Indian villages, could have inhibited the
spontaneity of the individuals, many of whom did not speak Spanish and could not
understand the purpose of the Commission's visit. On the other hand, the
Commission also knows that the majority of the individuals interviewed in the
State of Chiapas were there fleeing what they considered persecution by the
Guatemalan army, a factor that could make their testimony less objective.
9.
In general, the testimony received during the Commission's visit to
Guatemala confirms a situation of violence where peasants and Indians claim as
their primary objective that of being able to live in peace. In this situation
of violence, from which they want to escape, most of the testimony coincided in
that they did not place the responsibility for the violence and the deaths it
has caused, on either the army or the guerrilla. In general, most of this
testimony limited itself to point out that since the clothing and armament used
by both were the same, it was difficult to know if those responsible belonged to
the army or the guerrillas. Nevertheless, in certain isolated cases, those
inhabitants were able to distinguish members of the army or the guerrillas as
the perpetrators of torture and assassinations.
10.
On the other hand, the testimony received in the state of Chiapas, in
general, indicates that after the coup d'etat of March 23, 1982,
repression against the Indian and peasant population has continued in the areas
of conflict, particularly in those villages where the government claims there
are guerrillas or that it suspects some form of collaboration with the
guerrillas.
11.
For their part, the government authorities with whom the Commission
talked, emphatically denied having committed the human rights violations
attributed to them, adducing that the people responsible for it are the
guerrilla groups operating in the area, admitting deaths at the hands of
government elements, only when armed confrontations between army patrols and
subversive groups had taken place, and according to the authorities, those
groups were the ones terrorizing and devastating the region. Several of those
government authorities added that the government programs of protection and
assistance to the Indians and peasants have reached the most remote corners of
the national territory and that it is through them that they are gaining ground
on the guerrillas who have lost the trust of peasants and Indians.
12.
Now, the Commission will present in the most objective manner the
testimony it has received with regard to the right to life in the rural areas in
conflict. Those going from letter a to letter f were obtained
during the Commission's on-site visit to Guatemala; those going from letter h
to n were obtained in the interviews with Guatemalan refugees in the
state of Chiapas, Mexico.
a)
Parraxtut Village, Department of El Quiché
13.
The residents stated that civil self-defense exists since the month of
May, but they are worried that the few arms they do have would not be sufficient
to defend themselves if the village were attacked again as it was in April of
1980 when the village was ransacked and burned by some 60 men, some in uniform
and some in civilian attire.
They said that presently, an army patrol comes around each week bringing
maize, flour and some supplies.
b)
Pichiquil and El Pajarito Villages, Department of El Quiché
15.
The Subcommission met with eight mayors of different neighboring villages
who stated that, last year, they had suffered attacks on their villages but that
could not identify who the assailants were since some wore uniforms and others
civilian attire. They were armed with different kinds of firearms, rifles,
shotguns, bombs, etc. and robbed them of their clothing, supplies and burned
their houses.
They added that, at the present time, calm reigns in their villages, but
that due to the incidents taking place in previous years, terror and insecurity
persist to the point that Chichicastenango, which has traditionally attracted
tourists, has been affected and today few tourists dare to come.
d)
Estancia de la Virgen Village, Department of Chimaltenango
16.
When interrogated about the accuracy of a claim presented to the
Commission according to which there had been a massacre in April 1982, the
residents were forthcoming in saying that the massacre to which the complaint
referred had occurred in April 18, 1982, and that it had been perpetrated by
soldiers of the Guatemalan army. That the army patrols came every 8 days or so.
That, on that occasion, the soldiers had come by first, warning them not to
leave their homes. Later, the residents climbed the mountain where the soldiers
followed, killing the people that were there. Thereafter, they returned to the
village indiscriminately killing women, old people and children, as well as the
youth and men of production age. One of the neighbors said that the soldiers had
killed his wife and four sons. They all professed to be peaceful and religious
people. In addition, they stated that when the killings took place, the only
weapons the neighbors had were their work machetes, and that those who ran were
shot at with rifles, other were caught and tortured. They said that there was a
total of 160 dead, some of whose bodies were buried and others eaten by dogs.
The neighbors also said that the houses they abandoned for fear of being killed
were burned by the Army some days after the maize harvest. There were a total of
136 houses burned. They added that the guerrillas had never come through the
place and that it was the Army that burned the maize. Finally, the neighbors
stated that after the massacre no other violent incidents had taken place and
that they had enjoyed peace since that date.
e)
Village of Agua Caliente, Department of Chimaltenango
17.
The residents of the village, gathered in a house which apparently had
been recently reconstructed, stated to the Commission that on April 16, 1982, on
or about 4:45 a.m., a group of 250 men entered the village; that they were not
from the Guatemalan Army but guerrillas, armed with all types of weapons like
rifles, carbines, shotguns, bombs and grenades. They attacked the village
killing a total of 14 persons, burning two houses and stealing clothing, money,
maize and everything else they could carry. While all of this was taking place,
a boy managed to flee the village and alert the Army detachment in Comalapa,
which immediately sent a group of soldiers in helicopters at around 9:30 a.m.,
while the guerrillas still chased the residents who had escaped to the
mountains. Following that there was a confrontation between soldiers and
guerrillas, with the guerillas leaving one dead behind while retreating. The
villagers expressed the belief that what has prompted the guerrillas to attack
the village was the formation of self defense civil patrols and thus, they were
looking for a way to destroy everything at once and that previously, when there
was no civil defense, the guerrillas took advantage of them and killed the
military commissioners and the assistants to the mayors, whom they would bring
out one by one, house by house.
The villagers added that the Army patrol comes by the locality every 15
or 20 days and that they had never been mistreated by those patrols and further,
that the National Reconstruction Committee has been helping them, providing
supplies such as rice, beans and sugar and helping them rebuild the burned
houses. An example of that was the house in which the villagers and the members
of the Subcommission were gathered, the Army having provided the construction
materials and some technical assistance.
The villagers also said that the government provides them with health
assistance, sending a health specialist who was present at the time, and who
said that in that village he saw patients on Tuesdays and Thursdays, sometimes
with the help of an assistant.
f)
Town of Nenton, Department of Huehuetenango
18.
The Subcommission, without military escort, visited the town of Nenton
going to the main square where it proceeded to talk with the neighbors. The
appearance of Nenton was that of a town heavily armed and occupied by the Army
of Guatemala.
The testimony received by the Commission gives the following account:
that of the 15 thousand residents in 1981, only a few more than 125 were still
there, since the majority of the population had fled to Mexico as a result of
the violence in the armed struggle between the guerillas and the Army; that the
military garrison kept a number of persons under arrest, among them two Nenton
neighbors, Emilio Camposeco and Pascual Tomas, who had recently been taken out
of their homes. The villagers added that the prisoners were viciously tortured,
and that they ended being mutilated and killed, their bodies thrown into the
river, where the bodies reappeared causing more panic and desperation among the
frightened population of Nenton; that from March 1982 until this date, some 20
persons had been executed in this fashion and that, recently, 4 or 5 persons had
been assassinated in a similar manner by the army occupying Nenton. The persons
interviewed recommended to the Subcommission that a more humane and just
treatment be given to those arrested. They made it clear, that when the
guerrillas attacked the town they only attacked the members of the army and did
not cause any injuries to the civilian population.
g) San
Francisco Establishment, Municipality of Nenton, Department
of Huehuetenango
19.
The Commission had a particular interest in visiting the Establishment
San Francisco, Municipality of Nenton, having received a complaint that
government troops were accused of killing 350 peasants. The complaint reached
the Commission from different sources and it is based on the account by the only
survivor of the massacre and can be summarized as follows: San Francisco is the
name of a privately owned establishment where peasants had remained and had
constructed their homes—some 75 in all-after other families began to arrive,
little by little, until there were 350 residents including men, women and
children.
At the beginning of July 1982, the Army of Guatemala, on its way through
the area, had called on the men and as a sign of trust, had formed with 20 of
them two self-defense civil patrols whom they trained in the use of arms and
even left armed. This had injected confidence in the population which did not
move, like their neighbors, to the mountains but stayed in the group of houses
minding their daily tasks. On Thursday July 15, the soldiers arrived unannounced
and called the recent recruits and told them to go with them to the mountain,
something that did not arouse any fears because they considered it a routine
call. Once they were outside of town, the Army shot the 20 men that were
accompanying them. The next day, July 16, 1982, the Army gathered part of the
population in the Catholic Chapel and in the town's biggest houses. According to
the account of the only survivor, they then proceeded to burn the houses. There
was nor mercy shown for anyone; in one house they burned 40 people, in three
others 25 people and 10 in another. Others were tortured and when they could not
get any more information from them, they were finished off with machetes.
Angered with others that did not respond in Spanish, they decapitated them on
the streets.
Afterwards, according to this account, the soldiers rushed the people
they had gathered at the town's chapel. For that they used hand-grenades,
bazookas, and machine guns; those who could flee from the chapel were gunned
down or killed with machetes. The houses and the people that were still alive in
them were burned. The only survivor, named Francisco, injured on one leg had
been buried under bodies. He waited for the opportune moment and then crawled to
the nearest village where he could find people to help him.
20.
Unfortunately, due to special circumstances that the Commission deems
appropriate to indicate in this report, it was not possible to visit the San
Francisco establishment in the Municipality of Nenton.
In effect, when elaborating the original travel plans in the city of
Guatemala with the chiefs of the Air Force, nobody had objected to visiting that
locality nor had they indicated to the Commission that there could be some
confusion with respect to its exact location. Nevertheless, on leaving Nenton in
the direction of San Francisco, the pilot of the aircraft asked the members
which San Francisco they wanted to visit because there were three: San Francisco
Las Flores, San Francisco El Alto and San Francisco Miramar.
In an effort to determine the correct place, the Commission explained to
the officers aboard the helicopter the characteristics of the locality and the
nature of the complaint they had received on the mass killings of approximately
350 peasants at the hands of the Army.
Neither the officers nor the pilot, who was very knowledgeable of the
region, seemed to have any knowledge of the incident. On the way to San
Francisco, the captain of the helicopter was requested to land at an
intermediate point, the town of Colotenango, where the Commission had particular
interest in interviewing a certain person.
The Subcommission remained in Colotenango for more than one hour. It
interviewed several residents independently and in confidence. It also visited
and was received by a group of Catholic nuns who run a grade school in that
locality. The nuns were very kind, but they begged the members of the
Subcommission not to force them to answer questions with regard to Army
activities against the population. They seemed truly afraid, and although they
did not deny anything, they did not want to admit anything either.
Unfortunately, the person the Subcommission wanted to interview could not
be located and since the pilot informed them that due to bad weather they could
not go to the San Franciscos, the Subcommission decided to go to Huehuetenango
and continue with its schedule of activities in that department.
h) Village
of Monte Cristo, Municipality of Tajamonco, Department
of San Marcos
21.
A 57-year-old gentleman recalled how on September 25, 1982, the Army
arrived in the village firing from land and air. The population fled seeking
refuge in the Union Juarez locality. The soldiers rounded up the people that had
remained in their homes, raped the women and killed a total of 18 persons among
them, Emiliano Chilelo, Joaquin Martínez and his wife Francisca López, one
named Erasmo, a son of his and another woman named Elvira. All of them were
killed with machetes.
i)
Village of Molac, Municipality of Barias, Department of
Huehuetenango
22.
A 20-year-old youth told how the soldiers who arrived by land and by
helicopter, killed his father and three other persons named Ramon, Juan and
Esteban. His father was killed on the road and the other three at the communal
house where they had been taken tied up. Later on, they burned the homes, the
communal house and the church. This happened on July 20, 1982.
j)
Caston Village, Municipality of Barias, Department of
Huehuetenango
23.
The witness said that in the month of July 192, Army soldiers came and
burned down the houses. That before the Army arrived, 5 women from the village
together with their sons, a total of 19 persons, had left the place and headed
toward the Mexican border. That on the way, they were intercepted by the
soldiers who killed them with guns and machetes.
k) Village
of Lombajoche, Municipality of Nenton, Department of
Huehetenango
24.
A woman said that she, together with her husband and sons, left the
village when learning that the Army patrols were coming. That they were on their
way to Altoya when they were intercepted by the soldiers who shot at them. That
in the shooting, her husband and daughter, whom her husband carried in his arms,
and another girl that she was carrying were killed while the woman narrating the
incident was wounded on the shoulder, a fact verified by the members of the
IACHR Secretariat.
Another witness of the Lombajoche Village said that on July 19, the Army
arrived, surrounded the place and proceeded to gather the people at the
courthouse. Then they burned the houses and took some people to a place called
Bule. That in that place, they selected 5 persons and killed them. That their
names were: Miguel Domingo Paez, Lucas Pedro, Pascual Paez Ramos, Andrés López
and another person whose name the witness cannot recall. That afterwards the
soldiers went to San Francisco Nenton, where they perpetrated a massacre.
l)
Santo Tomas Village, Municipality of Chajul, Department of
Chimaltenango
25.
The witness said that since January of 1982, the Army, in its effort to
eradicate the guerrillas, had taken it out on the peasant population, for which
reason they had to abandon their villages and flee to the mountain side. That
the Army searched for them and persecuted them. That while living in the
mountain, some families believing in the exchange offered by the new government
of General Ríos Montt had come down from the mountain and surrendered to the
Army. One of these families was that of Nicolás Alvarez Lap, his two grown up
sons, a daughter of tender age and his wife. Mr. Alvarez, despite the efforts
made to dissuade him, decided to come down with his family and surrender. To the
surprise of his companions still in the mountainside, the Army instead of
welcoming them killed them. The bodies of Mr. Alvarez's wife and sons were found
days later; not so the body of Mr. Alvarez whose whereabouts are still unknown.
m)
Maracatan Village, Department of Huehuetenango
26.
The witness said that on June 6, the Army arrived. That, by then, they
already knew what had taken place at the neighboring village of Piedras Blancas,
where, according to witnesses who were able to flee, the Army rounded up all the
families, tied them up and put them in a house which they then burned killing
all 200 people inside. That due to the fear of knowing that the Army was coming
to their village of Maracatan, they all fled except for 50 families who remained
out of confidence. The Army killed all the members of all five families and then
burned all the houses.
n)
Village of Santa Maria, Department of El Quiché
27.
According to the testimony of a survivor of the incidents which took
place in December 1982, Army patrols entered his village accusing the residents
of being part of the guerrillas or of cooperating with them. That they then
proceeded to kill men, women and children. The witness recalled how he saw the
soldiers knife four children to death.
o)
Village of Caibi Balan, Department of El Quiché
28.
The witness said that the Army came several times to his community asking
for the guerrillas, to which they answered that they did not know. The last
visit of that type was during the first days of June of 1982. Later, on June 7,
the army arrived. This time first came a helicopter which flew over the village
and then entered the soldiers on foot firing their arms from the borders of
town. Thereupon, the villagers, who had learned of what had occurred in the
villages of Dolores and Santo Tomás, fled to the mountainside. The result was:
17 dead and all the houses burned.
29.
After examining the information presented here and carefully studying all
the evidence at its disposal, the Commission finds that a situation of intense
violence continues to exist in the rural areas in conflict, where the Army, in
pursuit of the guerrillas operating in those areas, utilizes the whole spectrum
of counter-insurgency military tactics, even at the expense of the norms of
international humanitarian law. That places those responsible for such acts in
open violation of the provisions of Article 3 of the Geneva Convention of August
12, 1949, on the treatment of wounded and sick members of the armed forces in
the battlefield to which Guatemala is party.18
As a result of the constant armed confrontations between the Army and the
guerrillas, numerous persons, including noncombatant civilians, have been
killed, which means that the civilian population feels afraid and insecure and,
to a large extent, has sought refuge in bordering countries.
30.
On the other hand, in order for the Government to achieve its objective
of eradicating what it considers subversion, the Government has divided the
peasant and Indian population into those who it considers prone to joining the
socio-military programs of the Government, whom it has organized in self-defense
civil patrols and provided with “guns and beans”, and those peasants and
Indian sectors whom it considers leaning toward the guerrillas and whom have
been punished by all possible means, including very serious violations of human
rights which sometimes have even reached the destruction and ransacking of whole
villages and the killing of all their residents. 31. Although the Commission has no doubts that the guerillas have committed serious and reproachable acts in those areas of conflict, it also considers that the government of Guatemala is directly responsible for the right to life violations that have occurred in those areas.
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11
See items 29, 30, 31, 32 and 33 of that Advisory Opinion. 12
Thus, the International Court of Justice, for example, has declared
imperative norms of international law the obligation of every State to
respect the fundamental human rights, ICJ Reports 1970, page 33. 13
See Chapter IV. 14
Those programs have been explained in section K, Chapter I. 15
See OEA/Ser.L/V/II.53, doc. 21, rev.2 of October 13, 1981, page 18
and following pages. 16
The situation of refugee peasants and Indians will be studied in
Chapter VIII. 17
As mentioned in the Introduction, due to bad weather the Commission
was not able to travel on that day to Alta and Baja Verapaz, as it had
planned. 18
In the case of armed conflict not of an international character
occurring in the territory of one of the High Contracting Parties, each
Party to the conflict shall be bound to apply, as a minimum, the following
provisions: 1) Persons taking no active part in the hostilities, including
members of armed forces who have laid down their arms and those placed
“hors de combat” by sickness, wounds, detention, or any other cause,
shall in all circumstances be treated humanely, without any adverse
distinction founded on race, colour, religion or faith, sex, birth or
wealth, or any other similar criteria. To this end, the following acts are
and shall remain prohibited at any time and in any place whatsoever with
respect to the above-mentioned persons: (a) violence to life and person, in
particular murder of all kinds, mutilation, cruel treatment and torture; (b)
taking of hostages; (c) outrages upon personal dignity, in particular
humiliating and degrading treatment; (d) the passing of sentences and the
carrying out of executions without previous judgment pronounced by a
regularly constituted court, affording all the judicial guarantees which are
recognized as indispensable by civilized peoples. (2) the wounded and sick
shall be collected and cared for. An impartial humanitarian body, such as
the International Committee of the Red Cross, may offer its services to the
Parties to the conflict. The Parties to the conflict should further
endeavour to bring into force, by means of special agreements, all or part
of the other provisions of the present Convention. The application of the
preceding provisions shall not affect the legal status of the Parties to the
conflict. |