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Mitzi Bolaos

November 19, 2008

Seminar: Latin American Constitutionalism

Final Paper

The Guatemalan Constitution and the Inter-American Court:

A Safety Net

Some argue that a constitution is only a symbolic expression of the ideals of a society,

and when we take an in depth look at Guatemala, this argument seems to have some degree of

legitimacy. Guatemalas authority figures, particularly the national police force,

systematically commit human rights violations, all of which are also constitutional violations,

on a regular basis. Over a decade after the end of Guatemalas vicious civil war, impunity

remains the norm for human rights violators. Not only has Guatemala not prosecuted those

responsible for the atrocious violations committed during the civil war of 1960-1996, but

violations being committed today by Guatemalas law enforcement agencies go unpunished as

well. Particularly disturbing are the unpunished violations committed against children and the

campaign of social cleansing that is taking place. One avenue of recourse for Guatemalans

is the Inter-American Court system, as Guatemalas Constitutional Court has proven itself to

be ineffective.

Constitutions, intended to strengthen and unify a community, embody hope for the

future of a nation, as well as the memories of mistakes that should not be repeated.1

Nevertheless, a constitution may also be seen as merely a legalistic opium for the masses,2a

means of making people feel that at least they have something written on a piece of paper to

protect them, even if only in theory. A constitution may also be seen as a measuring rod for

the progress of a country, or as an inspiration for the attainment of a goal. To this end,

constitutions are no longer a solid source of substantive law that must be followed, and they

1 Duchacek, Ivo D. National Constitutions: A Functional Approach. Comparative Politics, Vol. 1,

No. 1 (Oct., 1968), pp. 91-102, at 91-95.2Id. at 98

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are neither the core of political systems, nor the culminating point, but only one of the

stepping stones towards an ultimate goal.3

There is an anomaly regarding constitutions throughout Latin America, and Guatemala

is no exception. On the one hand, the importance of a constitution is seen through the

constant writing and revising of the instruments, while at the same time, disregard for

constitutional mandates proliferates throughout the region. With this constant writing, there

remains hope that a constitution curing the evils of society will one day be born. 4 The

existence of a constitution is not a guarantee of rights, although it may be a good starting

point. The bloodiest years of the civil war in Guatemala were 1980-1983. In 1985, the

Constitution was adopted, a symbol for moving beyond those atrocious years and of hope for a

better future, even though that future is one that is yet to be found. Constitutions seem to be

an assertion of ideal objectives, a guide, rather than a set of fundamental laws that must be

followed.5

The Guatemalan Constitution, known as the Political Constitution of the Republic

(PCR), was issued in May 1985, entered into force on January 14, 1986 and was reformed in

1993. The Constitution establishes a Human Rights Ombudsperson and a Constitutional

Court to monitor compliance with the Constitution. The Ombudsperson presents an annual

report to the Presidential Human Rights Commission, known as COPREDEH. There is also a

Victims Office; however, few resources are available to it.6 Constitutional law in Guatemala

is composed of the PCR and the Law on Constitutional Protection and Actions (Ley de

Amparo, Exhibicion Personal y de Constitucionalidad). This law provides a detailed

regulation of the constitutional procedures, enforcement mechanisms, and their conditions of

admissibility and areas of competence. The Constitutional Court may hear cases dealing with

the unconstitutionality of laws, either in concrete cases or in general, and may hear cases

3Id. at 1024 Mecham, J. Lloyd. Latin American Constitutions: Nominal and Real. The Journal of Politics,

Vol. 21, No. 2 (May, 1959), pp. 258-275, at 258.5Id. at 266.6 Rivera, Claudia and Arturo Echeverria, et. al. Human Rights Violations in Guatemala. World

Organisation Against Torture. (Nov. 2006), pp. 21.

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regarding the protection of individual constitutional rights through the writs of habeas corpus

and amparo.7

The opening Article of the PCR declares that the State is organized for the protection

of the person and the family, while Article 2 guarantees life, liberty, justice, security, peace

and ones personal development. Articles 263 and 265 of the PCR deal with writs of habeas

corpus, for the guarantee of individual freedom, and writs ofamparo8, for the guarantee of all

fundamental rights, free from arbitrary acts of government. The PCR reaches beyond its own

text and states in Article 44 that the rights and guarantees that have been established in the

Constitution do not exclude others that, although not expressly mentioned, are inherent to the

human person.

Unfortunately, there are several discrepancies between the language of the PCR and the

manner in which it is interpreted by the judicial system. For example, Article 46 of the

Constitution establishes that in regards to human rights, treaties and conventions accepted and

ratified by Guatemala have pre-eminence over internal law. Guatemala has ratified a number

of human rights treaties, but the Constitutional Court has ruled that international treaties do

not prevail over the Constitution and that treaties do not constitute a standard for determining

unconstitutionality. Despite Article 46 of the Constitution, the Constitutional Court has

rejected claims based on violations of international human rights norms.9

Nevertheless, the Constitutional Court has ruled that if there is a discrepancy between

a human rights treaty and a constitutional norm, the norm that should prevail is the one that

recognizes more rights and improves benefits for Guatemalans. Luckily, the PCR is to be

looked upon as a body of minimum rights, subject to improvement and expansion, rather than

an exhaustive listing of rights.10 This is a great aspect, yet does not offer much hope as even

those rights that are explicitly guaranteed in the document are routinely violated.

7 Rodriguez, Ana Cristina. Guide to Legal Research in Guatemala. July 2006.http://www.nyulawglobal.org.8 The word amparo literally means protection or shelter. Legally speaking, it is found mostly in

Latin America and is intended to protect all rights other than physical liberty, which is protected by

habeas corpus. It may be invoked by any person who believes that his constitutionally protected

rights have been violated.9 Rivera, Claudia and Arturo Echeverria, et. al.,supra, at 28.10 Rodriguez, Ana Cristina,supra.

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Impunity is one of the biggest problems in Guatemala, not only for crimes committed

during the gruesome 36-year civil war, but for crimes committed in the present day. After the

1985 constitution was approved, thePatrullas de Autodefensa Civil(PACs),11or Civil Self

Defense Patrols, responsible for a large portion of the violence, were legally disbanded.

Article 34 of the Constitution addresses this specifically and states that no one is obliged to

take part in self-defense groups, or similar groups. After this, the PACs were then renamed

Comits Voluntarios de Defensa Civil(CVDCs), or Voluntary Civil Defense Committees.

With the end of the war in 1996, many of these groups were demobilized, yet several remain

in certain regions of the country, continuing to commit crimes.12

Engaging in disappearances and forming death squads were the perfect solution for the

State in order to disguise its official involvement in the atrocities during the war and avoid

responsibility in the international community.13 Although these practices presumably ended

with the war, it seems Guatemalans are currently living in a similar situation. Today,

disappearances and death squads, usually commanded by the National Police or people

working for them, have been resulted to in order to deal with societys undesirables. A

report published by Guatemalas Truth Commission,14 which was charged with investigating

and unveiling the truth concerning the human rights violations committed during the civil war,

indicates that 93% of the violations during the conflict were attributable to State and

paramilitary actors. The report also indicates that Guatemalas response to the tragedies that

occurred during the civil war plays an important role in the future of the country and of the

people, nearly all of whom have suffered in some way due to the war. The State publicly

acknowledged its responsibility for the human rights violations committed and apologized for

11 The government formed local Civilian Defense Patrols (PACs) as a means to keep an eye on any

suspected guerrilla activity in every corner of the country. This was also a means of turning

neighbors against each other and creating fear and terror. Participation was in voluntary, in theory,

but in practice, men had no choice but to join either the PACs or be considered a guerrilla and

consequently killed. It is estimated that at times the PACs included up to one million men.12 Rivera, Claudia and Arturo Echeverria, et. al.,supra, at 14.13 Roht-Arriaza , Naomi. State Responsibility to Investigate and Prosecute Grave Human Rights

Violations in International Law. California Law Review, Vol. 78, No. 2 (Mar., 1990), pp. 449-513,

at 457.14 The complete name for Guatemalas Truth Commission is The Agreement on the Establishment of

the Comisin to Clariify Past Human Rights Violations and Acts of Violence that have Caused the

Guatemalan Population to Suffer.

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these violations. However, past violations have not been prosecuted and have barely been

investigated.15

This has set the stage for the lack of investigations and prosecutions we see today.

The refusal to even investigate and allow the truth to be known about past events denies the

victims families the vindication and closure they deserve. By not addressing the crimes of

the past, a culture of impunity has been and continues to be fostered in Guatemala.

Investigating and making reparations for the past is the foundation that should be laid so that

Guatemala may then begin to build a future where rights are guaranteed and violators are

punished.

The truth commission documented 626 massacres that took place between 1960 and

1996. Of these, only two cases have been successfully prosecuted in Guatemalan courts. A

high price has been paid in the handful of other convictions obtained in human rights cases.

The case of the assassination of anthropologist Myrna Mack in 1990 serves as an example. It

took over a decade to convict the army colonel responsible. During that time a police

investigator was murdered, and two other investigators and three witnesses received threats

and had to flee the country, while the convicted colonel escaped police custody and has not

served his sentence.16 This type of occurrence is common during human rights trials and is

one of the reasons why so few cases are ever launched against violators. To many, it is simply

not worth it.

Another hindrance to the investigation and prosecution of human rights violations that

occurred during the civil war has been the application of the Law of National Reconciliation.

The Constitutional Court has interpreted this Law as placing a procedural hurdle on claims

regarding past human rights violations, requiring special proceedings to be held before a case

can be heard by the Constitutional Court.17 There are several possible explanations for the

Courts hesitance in hearing these cases, including a reluctance to open old wounds and a

desire to move on and forget the past. This, however, is not conducive to healing old wounds,building confidence in the State as a guarantor and protector of rights, or of moving forward.

15 Report on the Situation of Human Rights in Guatemala,Inter-Am. C. H. R., OEA/Ser.L/II.111,

Doc. 21 rev. (2001).16 Guatemala: Country Summary. Human Rights Watch. (Jan. 2008). www.hrw.org.17 Rivera, Claudia and Arturo Echeverria, et. al.,supra, at 28.

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Corruption within the court system, bribes, and fear of the State are also possible explanations

for the Courts hesitance.

Another obstacle for prosecution of those who committed crimes during the civil war

is Article 156 of the Constitution, which provides that the illegality of an order or command

from an authority must be demonstrated in order to prosecute a subordinate official. This

allows for perpetrators to justify their actions as simply following orders from above. This

Article, however, has been interpreted to an extreme, as the clear illegality of murder is

inescapable.

In 2005 Spains Constitutional Court ruled that under the principle of universal

jurisdiction Spanish courts could try Guatemalan individuals for the crime of genocide.18 In

2006, a Spanish judge issued international arrest warrants for eight ex-military Guatemalans

and the Spanish government requested the extradition of these individuals. In December 2007

the Guatemalan Constitutional Court declared that Spain had no jurisdiction over the

Guatemalans in question. It has been argued that the Guatemalan Constitutional Court verdict

contains arbitrary legal jargon that is not based on the law, 19 as the concept of universal

jurisdiction was not even addressed in the Courts opinion. The Court characterized the

crimes committed by the ex-militaries as political crimes rather than crimes of genocide.

Instead of strengthening the justice and democracy systems in the country, they [Guatemalan

judicial system] are contributing to the consolidation of the largest problem in Guatemala

impunity.20 One of the ex-military captains responsible for planning, ordering, and

participating in several massacres of indigenous people, Captain Jose Antonio Solares

Gonzalez, continues to collect his pension check from the Guatemalan military at his house,

despite an arrest warrant issued since 2003.21 This type of behavior is insulting to survivors

18The massacres that occurred during this time have been labeled genocide as they targeted several

indigenous populations in their entirety. The massacres included men, women, and children. The

women were often raped several times before being killed and sometimes children were taken as

pseudo-slaves. Many were buried alive in mass graves.19Fonseca, Martha. Guatemala: Constitutional Court Verdict Exemplifies Impunity. 23 January

2008. http://upsidedownworld.org.20Id. The Spanish judge referred to in this case has declared that he will continue to investigate the

case and that the Guatemalan judgment has no effect on the international arrest warrants or on the

Spanish courts universal jurisdiction over the crime of genocide.21 Al Nakba, Thaddeus. Guatemala: Rio Negro Survivors Identify Executioners. 7 May 2008.

http://upsidedownworld.org. Five Civil Patrollers acting under Solares were convicted for one of the

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and to the victims families, as it victimizes them all over again. How can one trust his

government when the perpetrators of the most gruesome crimes, possibly committed against

your own loved ones, live in impunity in your own country?

Civil insecurity is a serious issue faced by Guatemalans, as the average number of

violent deaths per day averages 14, and human rights defenders take serious risks every day as

they perform their work. This reflects the general deterioration of the rule of law in

Guatemala. Threats against human rights workers, once only received by phone or letter, are

now being made in person, and perpetrators do not even bother to conceal their identities.

Burglaries of human rights organizations offices and the theft of valuable information is a

common occurrence. Impunity is enjoyed by those responsible for these attacks, as

investigations are rarely, if ever, conducted. Furthermore, criminal charges are often brought

against human rights organizations for any disorder caused during their organized

demonstrations. In this way, human rights defenders are criminally prosecuted for their work

by the State. COPREDEH has a specific unit for the protection of human rights defenders, but

it has been unable to prevent these types of attacks.22

Although Guatemalas civil war ended over ten years ago, the environment of

impunity that protected those in power during the war is still present today. The main issue is

Guatemalas weak and corrupt law enforcement.23 The Guatemalan Human Rights

Ombudspersons Office estimates that convictions are only obtained in approximately 6% of

all criminal cases, and that rate drops to less than 3% in cases involving the murders of women

and children.24 The killing of witnesses is also a major problem, as well as witnesses refusing

to testify for fear of their lives.25 In 2006, the National Civilian Police (PNC) Office of

Professional Responsibility reported that it had investigated 37 accusations of killings

involving PNC personnel.26 Besides that 37 is a shocking number when compared to the

massacres at Rio Negro. They will each serve 30 years in prison. However, they carried out theorders of the military chain of command that today enjoys impunity.22 Rivera, Claudia and Arturo Echeverria, et. al.,supra, at 23-24.23 Guatemala: Country Summary. Human Rights Watch. (Jan. 2008). www.hrw.org.24Id.25 Guatemala: Country Reports on Human Rights Practices. United States Department of State,

Bureau of Democracy, Human Rights, and Labor. (Mar. 2007). http://www.state.gov.26Id.

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hundreds of accusations made, most of these investigations are merely a way to silence

those who protest the violations.

There exist private, secretive, and illegally armed networks or organizations popularly

known as the clandestine groups that the authorities are either incapable of taming, or

simply prefer not to control. These groups have links to both organized crime and government

officials, which allows for access to valuable resources, both economic and political. The

Guatemalan justice system has so far proven no match for this powerful and dangerous threat

to the rule of law.27 Perhaps the State feels that these groups have society under control and

so in essence are doing the State a favor. So long as the groups are on the States side, there is

no need to stop them.

The rule of law has become so deteriorated that the country now faces the problem of

public lynching, committed mostly against those suspected of committing crimes in a

particular community. This practice, common mostly in the interior of the country, is a

response by Guatemalans who are fed up with crime and an ineffective justice system and

decide to take the law into their own hands.28 Even minors, as young as 14 years of age, have

fallen victim to this problem.29 This type of vigilantism is reminiscent of the civilian patrols

controlled by the army, responsible for so many of the deaths during the civil war. This is

another aspect of war time that Guatemala cannot afford to fall back into.

Article 12 of the Constitution states: The Defense of ones person and ones rights is

inviolable. No one may be sentenced or deprived of his/her rights without having been

charged, heard, and convicted in a lawful trial before a competent and previously established

judge or tribunal. Nevertheless, corruption, ineffectiveness and manipulation of the judiciary

plague the country. Fair and timely trials are rare and the majority of serious crimes are

neither investigated nor punished. Under Guatemalan law, the prosecutor has three months to

file the case or seek a formal extension of the detention period. Even so, prisoners are often

27 Guatemala: Country Summary. Human Rights Watch. (Jan. 2008). www.hrw.org.28Id.29 Rivera, Claudia and Arturo Echeverria, et. al.,supra, at 15. As an example, in May 2005, in the

town of Joyabaj, Quiche, two boys, ages 14 and 15, were reported beaten, lynched, and burned.

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detained for much longer periods without being charged, sometimes even for years. Some

prisoners are even detained after completing their sentences because of paperwork failures.30

Article 6 of the Constitution states:

No one may be detained or arrested except for a crime or

misdemeanor and by virtue of a warrant issued in accordance

with the law by a competent judicial authority. Exceptions are

made for those caught in flagrant delicto or in the act of

committing a misdemeanor. Detained persons must be brought

before a competent judicial authority within a period not

exceeding six hours and may not be subject to any other

authority. The official or agent of authority that infringes the

provisions of this Article will be punished according to the law,

and official courts will initiate the appropriate procedure.

Although it cannot be said that there exists an official state policy of systematic human rights

violations, the States inaction in confronting this problem and the States inability to

guarantee that all citizens enjoy their human rights speak for itself. There is convincing

evidence that members of the security forces take part in extrajudicial executions, and do so

with impunity. Often times, when a body showing signs of torture appears, the Public

Prosecutors Office will simply assert that the incident is gang related and will hastily close

the case, even when there exists strong evidence against a gangs relation to the crime. By not

protecting its citizens rights and by bestowing perpetrators with impunity, Guatemala is

responsible for these atrocious acts.31

Rather than taking preventive measures, the State has adopted a repressive technique

to battle the civil insecurity and crime that plagues the nation, a technique that has come to be

known as social cleansing. The UN Special Rapporteur on extrajudicial, summary, or

arbitrary executions has reported that there is strong evidence that members of state securityforces have engaged in acts of social cleansing. This includes the execution of gang members,

30 Guatemala: Country Reports on Human Rights Practices. United States Department of State,

Bureau of Democracy, Human Rights, and Labor. (Mar. 2007). http://www.state.gov.31 Rivera, Claudia and Arturo Echeverria, et. al., supra, at 38.

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criminal suspects, and other social undesirables.32 There are no programs for the prevention

of juvenile delinquency; nevertheless, the Ministry of Governance has set forth several plans

to battle crime that revolve around the persecution of young people exhibiting certain physical

and socio-economic characteristics.33

The Human Rights Ombudsperson has discussed social cleaning in Guatemala on

several occasions. In one report, the Human Right Ombudsperson stated that social cleansing

operations were being implemented to rid the society of its undesirables. Although it did

not determine that social cleansing was a state policy, it did find that police agents were

involved in these acts. The victims exhibited similar characteristics. They are youth coming

from lower economic backgrounds, with low levels of education, and often with some

indigenous descent. For example, in 2004, Josue Israel Noj, 19 years old, was killed on the

streets by gunshots fired from 3 individuals. A group of Josues friends were able to

apprehend two of the shooters and take them to the authorities. The two men belonged to an

agency of the National Civil Police. The weapon allegedly used to kill Josue was found on

one of the men, yet the men continue to live their lives with impunity.34

Gangs, or maras, have become common in Guatemala. Youths reach out to these

groups, which are usually blamed for the crime problem in the country. Membership in gangs

is used as an excuse by the State to not offer opportunities for these young people. In 2005,

the Patriot Party presented a law to Congress that would have legalized massive detentions of

youth solely on suspicion of gang membership. Luckily, Congress rejected this Anti-Gang

Law. There was a 40% increase in murders reported in 2005, most of which were committed

against gang members. It would be unreasonable to blame these murders on other gang

members as the characteristics of the murders are not in sync with gang crime. For example,

the bodies were not found on gang territories, the bodies were found with signs of torture

uncharacteristic of gangs, and the bodies are often found with anti-gang messages clearly

directed toward gang members in general.35

32 Guatemala: Country Summary. Human Rights Watch. (Jan. 2008). www.hrw.org.33 Rivera, Claudia and Arturo Echeverria, et. al.,supra, at 35.34 Rivera, Claudia and Arturo Echeverria, et. al.,supra, at 39.35 Id. at 47-50.

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It is interesting to note that the major crime problem is associated with crimes

committed against gang members and not crimes committed by gang members, although that

is what the State would like us to believe. It seems these gangs are a refuge for the average

street child whose fate would be up to the police if it were not for the protection of these

gangs. Guatemala has left these children with minimal options but to join a gang, as the State

does not provide these children with their basic needs. The State therefore drives these

children to gangs and then punishes them harshly once they join. This is a vicious cycle that

must be broken, and the only way to do so is with youth development programs, particularly

education and safe homes.

Social cleansing groups have arisen in different parts of the country. For example, a

group called the Peoples Defenders can be found in the western part of the country and the

groups mandate is to purge the area of mareros or gangsters. Another group called the City

Guardians has identified itself as a group to eliminate gang members and has claimed

responsibility for the deaths of several gang members. This group has handed out pamphlets

claiming that they come to stop the rabies killing the dog.36 Gangs are considered a disease

that is crippling the country; yet this idea is really an inverted reality. More and more gangs

are surfacing as young children find themselves alone on the streets, with no family, no home,

no food, and no education. These groups help each other find the basic necessities of life that

the State has so miserably failed in providing them.

It has been estimated that there are approximately 5,000 street children throughout the

country and 3,000 of them are in Guatemala City. Increased gang recruitment has decreased

the number of street children as these children then go live with older gang members. Almost

400 minors suffer violent deaths in Guatemala City a year and the street youth detained by

police are often subject to abusive treatment.37 The poorest of Guatemalas society are mostly

from indigenous traditions, the same groups targeted for genocide during the civil war. These

same children are the ones in the gangs and it seems as though the State has found yet anotherexcuse to rid society of them, using their membership in gangs, and their likelihood to

36 Rivera, Claudia and Arturo Echeverria, et. al.,supra at 51-52.37 Guatemala: Country Reports on Human Rights Practices. United States Department of State,

Bureau of Democracy, Human Rights, and Labor. (Mar. 2007). http://www.state.gov.

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commit crimes in the future, as an excuse to abuse and even kill them. It can be argued that

Guatemala continues to be in a state of undeclared civil war.

During the years of the civil war it was the State and the paramilitaries that committed

the worst crimes, over 90% of the deaths were attributable to them, yet they excused their

conduct as necessary for the protection of the nation and protection from the dangerous

guerrillas. Similarly, today the National Police and the anti-gang groups working with the

police and security forces commit the most heinous crimes against the street children and gang

members, who are erringly considered the more dangerous of the groups. These children only

wish to survive, and gangs seem to be their only hope for now, until the State decides to

comply with its obligations to these youths.

Article 20 of the PCR relates to minors. It states that minors who infringe the law are

not accountable for their crimes and that their processing should be oriented toward an integral

education for the youth. It further states that minors whose conduct violates the penal law will

be processed by specialized personnel and institutions, and by no means should be imprisoned

in adult penal centers.38 Despite this Article, street children are abducted, tortured, and

ultimately killed by police forces rather than being rehabilitated through education and safe

homes. National law enforcement agencies are not trained in dealing with the special

situations of these children.

The Constitution and the law provide for free compulsory education for all children up

to the sixth grade, yet a primary education is something that less than half of the countrys

population possesses. Less than half of the children who enter primary school finish their

third year, and a little over a quarter reach beyond the sixth grade. These rates drop even

lower in rural and indigenous areas. The average non-indigenous child receives an average of

4.2 years of schooling, while indigenous children receive an average of 1.3 years.39 This is

what the State should focus on in order to tackle its social problems. These numbers are

38 ARTICULO 20: Menores de edad. Los menores de edad que transgredan la ley son imputables. Su

tratamiento debe estar orientado hacia una educacin integral propia para la niez y la juventud. Los

menores, cuya conducta viole la ley penal, sern atendidos por instituciones y personal

especializado. Por ningn motivo pueden ser recluidos en centros penales o de detencin destinados

para adultos. Una ley especfica regular esta materia.39 Guatemala: Country Reports on Human Rights Practices. United States Department of State,


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alarming and need to be improved as a first step to bettering the overall welfare of society.

Getting these kids into schools and off of the streets should be a priority for the State.

Under Article 3 of the Constitution, the State is to guarantee and protect human life

from the time of conception. However, the amount of children living on the streets of

Guatemala is overwhelming, and these are children whose most basic needs are not being met.

In 2005, 334 children and minors under 18 were killed just in Guatemala City. Children as

young as six years old have been killed because of their affiliations with gangs. They are

abducted, burned with cigarettes, strangled with wire, and often stabbed. Children often go

missing for months before their bodies are ultimately found. When families inquire about the

whereabouts of these children they are often given a runaround until they are finally told that

the children are dead and already buried under the identity XX. 40

Article 11 of the Law of Integral Protection of Children and Adolescents establishes

that every child has the right not to be subjected to torture or cruel, inhuman or degrading

treatment. Article 76 of this law places an obligation on the State to ensure that public and

private institutions assist children whose rights are threatened. This is the kind of law that we

need to see implemented in Guatemala, and not solely written into the books. Education and

respect for the lives of children is the key to ending gang membership, while killing off the

gangs, as the State has been trying to do, only leads to their strengthening.

The American Convention on Human Rights (the Convention) was adopted in 1969

and came into force in 1978. According to the preamble, the purpose of the Convention is to

consolidate in this hemisphere, within the framework of democratic institutions, a system of

personal liberty and social justice based on respect for the essential rights of man. The

Convention created the Inter-American Court of Human Rights (the Court or the Inter-

American Court) which has competence with respect to matters relating to the fulfillment of

the commitments made by the States Parties to the Convention (Article 33 of the

Convention). The Convention guarantees civil and political rights, enumerated in Chapter II,but does not enumerate social, cultural, or economic rights. In regards to these latter rights,

the Convention only says that States pledge to adopt measureswith a view of achieving

progressivelythe full realization of the rights implicit in the economic, social, educational,

40 Rivera, Claudia and Arturo Echeverria, et. al.,supra, at 52-55.

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scientific, and cultural standards set forth in the Charter of the Organization of American

States (Article 26).41

Chapter II of the Convention consists of 23 articles enumerating civil and political

rights, most notably, the right to life, humane treatment, personal liberty, free trial, rights of

the child, and equal protection. All of these rights are similarly enumerated in the

Constitution of Guatemala. Furthermore, in 2000 Guatemala ratified the first protocol to the

Convention, known as the Protocol of San Salvador, or the Additional Protocol for the

American Convention on Human Rights in the area of Economic, Social, and Cultural Rights.

It seems that on paper Guatemala is committed to the defense of human rights, yet on the

ground its citizens are not enjoying this apparent commitment.

Acts of intimidation, harassment, and death threats against judges, prosecutors,

complainants, witnesses, members of human rights bodies and victims and journalists

organizations are prevalent and greatly affect the administration of justice in Guatemala.42

Victims and survivors of the civil war direct their complaints at the Inter-American system

because, although the Public Prosecutors Office has created a unit for investigating and

prosecuting past human rights violations, this unit has yet to resolve even one case. Victims

of human rights violations in Guatemala have been successful before the Court, but although

the State is obligated to comply with the Courts rulings, compliance is extremely slow and

limited.43 The Court firstly will order the State to comply with the Convention and protect and

ensure the right that was violated. The Court can then order reparations for the victim and the

victims family. Reparations may be monetary compensation or may be non-monetary acts

such as public commemorations. The Court can also order that certain domestic laws be

revised in order to be in congruence with the Convention.

It is the responsibility of COPREDEH to promote the governments human rights

policy. COPREDEH also represents the government before the Inter-American Court for

human rights abuses and tries to negotiate amicable settlements.44

There seems to be an

41Basic Documents Pertaining to Human Rights in the Inter-American System. Secretariat of the

Inter-American Court of Human Rights. San Jose, Costa Rica (2006). P. 10-11.42 Rivera, Claudia and Arturo Echeverria, et. al.,supra, at 103.43Id. at 63.44 Guatemala: Country Reports on Human Rights Practices. United States Department of State,


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apparent conflict of interest as the same body who is supposed to be defending human rights

in Guatemala also defends the government when it is accused of human rights violations.

There should be a clear line as to who is defending the violators and who is defending the

people, and it should by no means be the same office.

In the case of the Street Children (Villagran-Morales et al.) v. Guatemala the Court

was called upon to determine whether Guatemala had violated Articles 1 (obligation to respect

rights), 4 (right to life), 5 (right to humane treatment), 7 (right to personal liberty), 8 (right to a

fair trial), 19 (rights of the child) and 25 (right to judicial protection) of the American

Convention on Human Rights45 with respect to the abduction, torture and murder of Henry

Giovanni Contreras (18), Federico Clemente Figueroa Tunchez (20), Julio Roberto Caal

Sandoval (15) and Jovito Josue Juarez Cifuentes (17); the murder of Anstraum Villagran

Morales (17); and the failure of State mechanisms to deal appropriately with the said

violations and provide the victims families with access to justice. The families of these

victims were given minimal, if any, information about the deaths of their relatives and several

reported being afraid to go to the authorities searching for answers. When information was

given, it was discovered that the police reports did not mention the signs of torture that were

found on the dead bodies. The ears and tongues of the victims had been cut off and the eyes

had been burned. The mutilations correspond to the treatment that the police usually use on

those who inform against the security forces.46 Several witnesses reported seeing members of

the State security forces with the victims before and during the abductions. Eye witnesses that

had identified members of the National Police Force who had allegedly participated in the

attacks were found dead and several threats were made to members of Casa Alianza.47 These

members eventually had to flee the country.

One witness to the attacks in this case, also a street child, reported a police officer

threatening her and saying that she was good for nothing and better off dead. This is a

glimpse into the attitude of the authorities towards street children. The domestic judicial

45 Each of these rights is also guaranteed by the Guatemalan Constitution.46Case of the Street Children (Villagrn-Morales et al.) v. Guatemala.Inter-Am. Ct. H.R. Merits.

Judgment of November 19, 1999. Ser. C, No. 63. PAR 159.47 At the time of this case, Casa Alianza was handling almost 400 cases of crimes against street

children and most of the perpetrators of these crimes were members of the National Police Force or

other State security forces or private police agents.

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system in Guatemala has proved itself to be inadequate and ineffectual. The judge in the

Villagran-Morales case issued an investigation of the murder six months after the murder had

occurred. Once the investigation was under way, any evidence that tended to discover the

truth was rejected, including witness testimony.48

In the Courts opinion, it is a proven fact that in Guatemala, at the time the events

occurred, there was a common pattern of illegal acts perpetrated by State security agents

against street children; this practice included threats, arrests, cruel, inhuman and degrading

treatment and homicides as a measure to counter juvenile delinquency and vagrancy.49 The

Commission argues before the Court that Guatemala not only violated the provisions of the

Convention but also Article 6 of the Guatemalan Constitution, in that no report was made of

the detentions and the youths were not taken before a judicial authority. The Commission

further argues that, in that sense, the State also violated the victims right to file a petition for

habeas corpus under Article 263 of the Guatemalan Constitution as they were held

clandestinely. The bodies of these boys were eventually found abandoned in the desolate

woods, where they were subject to weather and animals. This in itself is another violation as

Guatemalan culture places much emphasis on the respect of the dead.50

Guatemala remained silent on most points brought up before the Court, and in one

report stated that the police force did not receive training on how to deal with these

children.51 Guatemala alleged that domestic remedies had not been exhausted before the case

was taken to the Inter-American Court, as is required by the Convention, since the

constitutional procedure ofamparo remained. However, besides the fear instilled in the

victims families, the processes available were clearly ineffective. The Court declared that not

only did Guatemala fail in investigating the crimes, but the evidence that was available was

ultimately rejected by the domestic judicial system.52 The Court decided that Guatemala had

in fact violated articles 1, 4, 5, 7, 8, 19, and 25 of the American Convention.

In the concurring opinion to this case, judges Canado Trindade and Abreu-Burellistate that in this case, there is the aggravating circumstance that the lives of the children were

48 Case of the Street Children (Villagrn-Morales et al.) v. Guatemala. Merits. PAR65.49Id. at PARs 79 and 189.50Id. at PAR 174.51Id. at PAR 183.52Id. at PARs 207 and 230.

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already devoid of any meaning; that is, the victimized children were already deprived of

creating and developing a project of life and even to seek out a meaning for their own

existence.53 This gets to the root of the problem in Guatemala in regards to children.

Guatemala is responsible for giving these children the basic necessities for their development,

without which, the problem of street children, and the derivative problem of social cleansing,

will continue with strong force.

One of the recommendations made by the Guatemalan Truth Commission was that the

State establish a Committee to Search for Missing Children. This committee was eventually

set up in 2001 by civil society organizations, without any participation by the State. The State

has refused to make the files that contain information about the whereabouts of these children

available, despite that the Guatemalan Constitution provides for any person obtaining

information from state files or records.54

Naomi Roht-Arriaza argues that there exists an obligation under international law to

investigate and take action against those responsible for disappearances, death squad killings,

and other grave human rights violations, whether those responsible are part of the current or

the previous government. This is necessary in order to avoid the cycle of future violations.

There is a tendency in recent international conventions to require states to investigate and

prosecute, as well as offer an adequate and effective remedy. State practice and customary

international law, as well as decisions of international tribunals and scholars, lead to the same

conclusion.55 Investigations also establish a commitment to the rule of law, which is one of

the basic pillars of a functioning democratic society.

Guatemala has failed in prosecuting the human rights violators of the past, and

unfortunately, it appears that the cycle is already at work. This cycle must be broken before

the situation in the country continues to worsen. It is important to set an example of the past

government that committed such grave human rights violations so that the situation will not

repeat itself. Legitimate investigations conducted by authorized personnel are necessary as

53 Case of the Street Children (Villagrn-Morales et al.) v. Guatemala.Inter-Am. Ct. H.R. Merits.

Judgment of November 19, 1999. Ser. C, No. 63. Joint Concurring Opinion of Judges A.A. Canado

Trindade and A. Abreu-Burelli. PAR 3.54 Case of Molina-Theissen v. Guatemala.Inter-Am. Ct. H.R. Reparations and Costs. Judgment of

July 3, 2004. Ser. C, No. 108. PAR 28a.55 Roht-Arriaza , Naomi,supra, at 449-513.

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accurate investigations lead to knowledge and awareness of the past. Proper investigations

and protections for judges, investigators, witnesses, victims, and human rights defenders are

also necessary for Guatemalan society. Also, the independence and the functions of the

Human Rights Ombudsperson should be strengthened.

The role of the army is another general problem, as the current purpose of the army is

more to preserve internal order and defend the regime in power rather than to defend the

country.56 Even though Article 244 of the Guatemalan Constitution limits the armys

functions, the army still actively participates in the penitentiary system by training the

National Civil Police and defining public security policy. The army is also directly involved

in the prison system by providing perimeter security to the prisons and by training the prison

guards. Furthermore, the army participates in criminal investigations and military personnel

are often recruited for public security functions.57 This is frighteningly reminiscent of civil

recruitment for the PACs. The involvement of the military in civilian life is a sign of

returning to the military dominated times of the civil war. The military is not trained in

handling civilian criminal investigations and should stay within its own domain.

The Inter-American Court has proven to be a good safety net for Guatemalan citizens,

but it should not have to come to that. The process is lengthy and most of Guatemalas

citizens rather not go through the time, expense, stress, and even danger of taking a complaint

to the international system. Guatemala must break the cycle of militarization and systematic

oppression of the undesired sectors of society. It must break with the tradition of impunity

established during the 30 years of civil war and must be careful to not allow the current

situation to escalate into another full scale civil war. A good start for this would be to address

the violations of the past and prosecute those responsible. Guatemalas domestic judicial

system must transform into one that protects the human rights of all Guatemalans, especially

children. Social cleansing has not reduced the crime rate; it is not the answer. The answer is

protecting the children of Guatemala, getting them off of the streets and into schools andyouth programs. The Guatemalan Constitution enumerates several rights inherent to the

human person. If only this Constitution were enforced on a daily basis in Guatemala, perhaps

an international safety net, such as the Inter-American Court, would not be necessary.

56 Mecham, J. Lloyd,supra, at 271.57 Rivera, Claudia and Arturo Echeverria, et. al.,supra, at 58-60.

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