CORRUPTION CRISIS OVERTAKES GUATEMALA

A new president takes office with no government experience and a background as a TV personality. He comes to the job after squaring off against a woman candidate, who he accuses of corruption. He promises that things will be different, but he can’t get much done. He’s forced to rely on a small group of retired military officers, some of them with shady pasts. Worse, information starts emerging about his party’s illegal campaign finance schemes, and an independent investigation turns up evidence of wrongdoing. To avoid further scrutiny, the president tries to get rid of the investigator, but runs into political resistance. A constitutional crisis ensues.

 

Sound familiar? Welcome to Guatemala.

 

The president is Jimmy Morales, former comedian, who on August 27 declared persona non grata the head of the U.N. Commission Against Impunity in Guatemala, Colombian jurist Ivan Velásquez. The Commission, known by its Spanish initials as CICIG, was created in 2006 through an innovative agreement between the United Nations and the Guatemalan government in order to deal with clandestine groups that had infiltrated the state and were attacking human rights defenders and others. In 2014, the U.N. appointed Velásquez to the post, and he helped shift CICIG’s priorities to the endemic, large-scale corruption that has sapped the country’s resources and allowed for strategic alliances among government and military officials, economic elites and organized crime. CICIG cannot prosecute, but acts as a civil party in cases brought by the local Prosecutors’ office.

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El Salvador’s Constitutional Court Invalidates Amnesty Law; Will Prosecutions Follow?

After years of deliberations, the Constitutional Chamber of El Salvador’s Supreme Court ruled on July 13 that the country’s 1993 amnesty law is unconstitutional and must be stricken. The 4-1 decision, although long expected, has caused uproar in El Salvador, where neither side in the civil war has been supportive of prosecutions for past crimes and where rampant criminality and insecurity are present-day scourges. The four-person majority of judges Sidney Blanco, Florentín Meléndez, Rodolfo González and Eliseo Ortiz, grounded the decision in the rights of the victims to access to justice, to judicial protection of fundamental rights, and to full reparations. It makes extensive use of international law, especially the jurisprudence of the Inter-American Court of Human Rights. It will provide new hope for the long-suffering victims of the country’s twelve-year civil war, but will also complicate the country’s politics and challenge a weak and compromised prosecutors’ office.

The complaint was brought by a number of NGO representatives and victims of rights violations, alleging that the amnesty law was illegally passed and violated El Salvador’s international commitments and constitution. The 1993 amnesty was passed to deal with the crimes of both sides in a civil war that cost some 75,000 lives. The amnesty was passed just three days after a U.N. sponsored Truth Commission issued its report. The Commission found that most of the massacres, assassinations, forced disappearances and torture committed had been carried out by the armed forces or by death squads connected to them.

The text of the decision

The Court first dismissed the procedural illegality argument, but used the occasion to note that the amnesty was not, as the Prosecutors’ office argued, a part of the peace accords that ended the civil war. On the contrary, those accords had stressed the need to end impunity for human rights violations. The Court thus confronted head-on one of the central myths of the country’s political classes, that amnesty was required by the peace accords. Rather, the Court held that the legislature had to balance the need for reconciliation with the need for justice for the victims. It cited with approval in this regard the 1992 Law of National Reconciliation, which provided amnesty for political crimes, but expressly excluded “grave violent events from January 1, 1980 on, which have left their mark on society, and demand the most urgent public knowledge of the truth” that were mentioned by the U.N.-backed Truth Commission.

In its July 13 judgment, the Court held that the amnesty is unconstitutional as applied to all crimes against humanity and those war crimes that violate the fundamental guarantees of Protocol II of the Geneva Conventions, committed by either side in the conflict. The amnesty violates the country’s international obligations to investigate and prosecute under the International Covenant on Civil and Political Rights, the American Convention on Human Rights, Protocol II, and the constitutional right of the victim of a crime to civil damages and to judicial protection of fundamental rights. Regarding war crimes, although Protocol II calls for the “widest possible amnesty,” that provision must be read in light of all the country’s international obligations, and the amnesty cannot be absolute. With respect to crimes against humanity, those crimes are by definition not subject to amnesty or statutes of limitations and are subject to universal jurisdiction.

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Guilty Verdict in Guatemala Trial on Sexual Slavery and Sexual Violence as Crimes Against Humanity

After almost a month-long trial, Judge Yassmin Barrios and her two colleagues on February 25 found two military officers guilty of crimes against humanity in the form of sexual violence, sexual slavery and domestic slavery against 11 Maya Q’eqchi’ women. The defendants, former Col. Esteelmer Francisco Reyes Girón and former military commissioner (local army representative in rural areas) Heriberto Valdez Asig, were sentenced to 120 and 240 years in prison, respectively. The first was also found guilty of the murder of Dominga Coc and her two young girls, while the second was also convicted of the forced disappearance of seven men, who were the husbands of the women. The defendants were convicted for both direct participation and for their roles as those in charge of the base.

As narrated in an earlier post, the case had its origins in the families’ efforts to establish legal title to their lands in eastern Guatemala. Local landlords called in the army, which treated the local population as “guerrillas,” detaining the men, who were never seen again. Once the men were captured and disappeared, the women were considered fair game. They were moved to the outskirts of the military base, where they were forced to take turns cooking, cleaning and being raped by soldiers. The judgment found that the victims’ accounts of the rapes, corroborated by former soldiers and men who had been imprisoned and tortured in the military base of Sepur Zarco, were credible and proved the elements of the crime.

Guatemala’s penal code art. 378 is a hybrid of crimes against humanity and war crimes, and includes “inhuman acts against a civilian population.” Earlier cases had established that unenumerated acts could constitute inhuman acts even if not explicitly described in the law, so long as they were criminalized in national or international law. The prosecution and civil complainants (a coalition of women’s groups) presented expert evidence on the criminal nature of sexual violence, sexual slavery and domestic slavery under international law, on the political roots of the crimes in land issues, on military structure and other themes.
At trial, the women covered their faces with traditional shawls to hide their identity. Supporters noted that the women had been subject to stigma and isolation when they returned to their communities, while defense lawyers tried to paint the women as prostitutes who were now seeking to cash in on reparations payments with the support of foreign NGOs. The judges would have none of it, recognizing the courage of the women “for appearing, testifying and publicly denouncing the multiple sexual attacks to which they were subject, which have undoubtedly left them with irreversible post-traumatic stress.” The judges found that the women were treated as war booty, and that the fact that they no longer had husbands made them available, in the eyes of the military, for any kind of abuse.
0b197ffc-afde-4014-85b7-818c0c6869b6_749_499“Acknowledging the truth helps to heal the wounds of the past and the application of justice is a right of the victims and helps strengthen the rule of law in our country, creating awareness that these types of crimes should not be repeated,” Judge Barrios declared.
This is the first case in a national court convicting military defendants for crimes of sexual violence and sexual slavery committed against their own citizens. As discussed here and here, international and internationalized criminal courts to date have been reluctant to, and not very good at, charging and proving these crimes, although upcoming cases may change that. It shows the importance of long-term work with groups of victims – one of the coalition of groups, ECAP – had been providing psychosocial help to the victims for over a decade. It brought together women’s groups (another of the civil complainant groups is called Women Transforming the World), groups working with indigenous women, and human rights groups. And it showed the importance of insisting on making national courts do their job, fighting impunity even under very difficult circumstances.

 

First national trial for sexual slavery as an international crime opens Feb.1 in Guatemala

On February 1, in a courtroom in Guatemala City, an historic trial will begin. Presiding Judge Yassmin Barrios – the same judge who presided over the Rios Montt genocide trial in 2013 – and her two colleagues will hear evidence against two former military officials for sexual violence, sexual slavery and domestic slavery as crimes against humanity. According to the Prosecutor, for up to six years Qek’chi Mayan women of rural communities were forced to take turns every two or three days washing, providing tortillas, cooking, cleaning and being raped at the military outpost of the community of Sepur Zarco, located on the border between the townships of Panzós and El Estor.  Fifteen of the survivors, backed by a coalition of women’s groups, brought a complaint in 2011 against the commander of the base, retired colonel Esteelmer Reyes Girón, and Heriberto Valdéz Asij, the former military commissioner (the Army’s local representative in rural areas) in the region. In addition to the crimes against humanity charges, Reyes is charged with murdering Dominga Coc and her two young daughters on the base. Valdez will face additional charges of forced disappearance.

 

The crimes were committed during the early 1980s, the height of the counter-insurgency war, although the women were forced to provide food for the soldiers until 1988 when the outpost closed. They originated, as many things do in Guatemala, with a struggle over land. The women’s husbands, worried that their lands had no formal title, began to push for security of tenure. The area near Panzós has long been a site of land struggles, including a 1978 massacre that many historians consider the beginning of the campaigns against the rural Mayan population. The response of local landowners was to call in the army, which killed or disappeared the men. Several months later, the army attacked their widows, burning down the houses, destroying their belongings, raping them, and forcing them to move right outside the military base. At that point, the “turns” in the military base began. A few of the women chose to flee, and lived for years in the mountains, suffering hunger and losing some or all of their children.

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Announcing the Community Land Rights Casebase – A New Resource for Lawyers and Grassroots Legal Advocates

As global demand for land and resources rises, dispossession of community land is increasing. Women are often the most affected when communities are displaced. Lawyers and front line legal advocates are stepping forward to defend communities’ rights, yet often struggle to find supportive legal precedent. While there have been many powerful legal victories in national, regional and international courts, advocates can’t harness that power unless we know and share them.

To address this need, Namati has created the Community Land Rights CaseBase: the first free, online, searchable database of case law from around the world relevant to community land and natural resource rights. In this post, we describe the inspiration and creation of CaseBase .

The Power of Effective Legal Strategies

For billions of people, land is their greatest asset: the source of food and water, the site of their livelihoods, and the locus of history, culture, and community. Yet more than ever, rural land is up for grabs. Local communities are being displaced, either directly or through the despoliation of the water, wildlife and other resources on which they depend. As dispossession grows, so does the resistance to it, leading to conflict, the criminalization of social protest, and the violation of a wide range of human rights. Women are often not only the worst affected, but lead the resistance. Many human rights defenders have been attacked while defending their communities and land.

Increasingly, communities seeking to defend and protect their land and natural resource claims are finding allies in the legal community and fighting back through local and national courts. Lawyers are basing challenges on a wide variety of legal sources, including national or international environmental laws, the rights of indigenous or tribal communities under international law, property rights, constitutional and human rights law, and common law principles.

In some cases they are finding support in the courts. For example:

  • National courts are holding governments accountable for violations of their obligations under international law:, in SATIIM v Attorney General of Belize (2014), the Supreme Court of Belize found that the Belize government had violated the United Nations Declaration of the Rights of Indigenous Peoples (UNDRIP) by issuing construction permits on the land of the Maya people without obtaining the Mayas’ free, prior and informed consent, and awarded an injunction and damages.
  • Lawyers are crafting creative legal strategies and waging their campaigns across a variety of legal forums: in Loserian Minis v. Thomson (2014) lawyers used US discovery procedure (28 U.S.C. § 1782) to obtain information vital to litigation in Tanzanian courts).
  • Courts are increasingly receptive to evidence necessary to support traditional land claims, but which historically has not been considered admissible: in Roy Sesana v. Attorney General of Botswana (2006), the High Court of Botswana conducted extensive testimony gathering and site-visits in order to include customary evidence in its considerations.

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Will the World Bank cut back on social, environmental and human rights protections?

This week, the World Bank holds its annual meeting. Amid the delegates rushing in and out, the Bank is expected to discuss a number of organizational changes ushered in by President Jim Yong Kim. As usual, a large number of civil society events critical of the Bank are planned, including a protest outside the Bank’s headquarters. This year, the protests have a specific focus: backsliding on the Bank’s commitment to environmental, social and human rights safeguards in Bank-financed projects.

Ever since the 1970s, affected communities and activists have complained that some development projects, despite the promise of raising living standards or incomes, have done more harm than good. Starting with the Narmada Dam in the late 1980s, communities began targeting financing of these projects by international financial institutions (IFIs). Pressure to avoid or minimize these harmful collateral effects has over the last quarter century led to an expanding set of guidelines, operational procedures (OPs), and impact assessment requirements for IFIs. These were joined over time by monitoring and redress mechanisms of various sorts, all aimed at improving the quality and outcomes of projects and programs as well as avoiding controversy, bad publicity and legal challenges from dissatisfied local communities or workers. For example, in 1993 the World Bank created the Inspection Panel; the regional development banks soon after created their own accountability mechanisms. The World Bank’s private sector arm, the International Finance Corporation, created a Compliance Advisor Ombudsman; the US Overseas Private Investment Center has an Office of Accountability.

In all these cases, the performance of the lender is measured against a set of internal guidelines and operating procedures. The most common complaints involve failure to do an adequate environmental and social assessment, or to comply with involuntary resettlement rules and those involving indigenous peoples. Other current safeguards involve dam safety, pesticides, and cultural heritage. In 1997, the World Bank grouped ten Operational Policies as specific safeguard policies – six environmental, two social, and two legal policies.[1]

The safeguards system for IFIs created in the 1980s is being pulled in two directions. On the one hand, growing lending in infrastructure and natural resource-related sectors has made it even more imperative that those providing the funding have some way of assessing, and avoiding or reducing, harmful effects on local communities, water and land. In particular, investments in Reduced Emissions from Deforestation and Forest Degradation (REDD) projects in countries with tropical forests have raised concerns that indigenous and forest communities will be the losers in a global market for forest carbon. To the extent that other actors, especially multilateral and bilateral aid agencies, fund similar projects, they become subject to the same pressures. Indeed, UNDP and several bilateral aid agencies now have – or are developing – their own safeguards. Combined with this, social, environmental and human rights assessment and monitoring, and accountability for unanticipated effects of private as well as public projects is becoming a key demand of civil society in forums ranging from the negotiation of the post 2015 Sustainable Development Goals to the UN Working Group on Business and Human Rights. Businesses, private banks and bilateral aid agencies are all, to one degree or another, developing their own safeguard, assessment, and due diligence systems.

On the other hand, the IFIs have to contend with the rise of new financial and political actors.   Sovereign wealth funds and Chinese and Brazilian development banks now provide alternative sources of development project finance, often without any environmental or human rights strings attached. According to the Economist, these banks’ lending “already dwarfs the $52.6 billion the World Bank disbursed last year. In 2013 BNDES of Brazil doled out $88 billion. Its Chinese equivalent made loans worth $240 billion.” (“An Acronym with Capital,” July 19, 2014) Last July, the BRICS countries created a New Development Bank (NDB) and Contingent Reserve Arrangement (CRA) as potential alternatives to the World Bank and IMF. The NDB has an initial capital of $50 billion and the CRA of $100 billion. The Bank must figure out how to compete in this new landscape.

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Murder of Rigoberta Menchu’s Father Tried in Guatemalan Court

On January 31, 1980, police firebombed the Spanish Embassy in Guatemala, killing 37 people, among them embassy personnel and protesters. One of those killed was Vicente Menchu, a community activist and the father of Rigoberta Menchu, who would go on to win the Nobel Peace Prize for her advocacy on behalf of indigenous peoples.

Thirty four years later, Rigoberta sat before a panel of judges in a Guatemalan courtroom, describing the events of that day and the effect they had on her and her family. Rigoberta Menchu - image from La PrensaRigoberta Menchu testifies - photo by Walter Pena.

Trial started yesterday in the case of the Embassy bombing. The defendant, Pedro Garcia Arredondo, is already in prison for the disappearance of a student leader. At the time Garcia Arredondo was the head of the police unit that ordered the firebombing. According to the prosecutor, he ordered that no one be allowed to escape the resulting fire.

This trial is notable for several reasons. First, because of the significance of the event, which was largely seen as the opening salvo in what became a genocidal campaign against the indigenous peoples of the country’s northwest. Vicente Menchu and his fellow protesters had occupied the Spanish Embassy, hoping to enlist the ambassador in making their concerns about army repression in the area known. The brutal response set the stage for an escalation of attacks on protesters and communities. Thus, in one sense the trial is a follow-up to last year’s genocide trial of former president Rios Montt and his intelligence chief, albeit focused on the predecessor regime of Romeo Lucas. It is one of the “emblematic cases” of the conflict.

Second, the international ramifications are significant. The Spanish ambassador had specifically called on the police to desist, and when the fire started, had escaped by jumping out the window. (The ambassador, Maximo Cajal, died earlier this year, but gave a sworn video statement to prosecutors that will be used in the trial). Spain broke diplomatic relations with Guatemala for many years over the incident, and the Spanish ambassador is now sitting up front at the trial. A Spanish judge has been investigating this case and others since 2006.

Third, some of the evidence comes from the national police Archives, discovered in 2005 in an abandoned police station. The archives, which are in the process of being digitized by researchers, according to the prosecutors’ office contain reports of the police action, linking Garcia Arredondo and others to the decision to burn people alive.

Finally, this is the first major trial of the human rights-related crimes committed during the 1980s since the departure of the former Attorney General, Claudia Paz y Paz. former Attorney General Claudia Paz y Paz

It may be intended to show that the current attorney general, known for her close links to the ruling party, intends to continue at least some prosecutions in this area, something that is important to the country’s international image. This prosecution, in that sense, is less politically charged, because it concerns the discredited Lucas regime, and doesn’t touch still-powerful figures close to the current government. Another investigation of a figure from that era, former Army Chief of Staff Benedicto Lucas (brother of the former president) is reportedly underway.