RIGHT TO LIFE1
A. General Considerations
1. Article 43 of the Constitution of the Republic of Guatemala, now repealed, recognized that:
The State guarantees as rights inherent to the human person: life, corporal integrity, dignity and personal safety.
Although Article 54 established the death penalty, it was recognized that the same would be extraordinary in nature and that it could not be imposed based on presumptions, nor applied to women or minors, persons over seventy years of age, persons accused of political crimes, nor to accused persons whose extradition had been granted under that condition. At the same time it added that “against sentences imposing the death penalty all pertinent legal means, including cassation and pardon, will be admissible”. “The sentence will be executed after all remedies have been exhausted.”
2. As indicated in the previous chapter, Guatemala in ratifying the American Convention on Human Rights expressed a reservation with regard to paragraph 4 of Article 4 of the Convention adducing that the Constitution only excluded from the application of the death penalty political crimes but not politically related common crimes.
3. Prior to the Government of General Ríos Montt, Guatemalan legislation reserved the death penalty for crimes of extreme gravity.2 With his assumption of power and the creation of the Courts of Special Jurisdiction, a number of crimes that the Penal Code punished with prison terms became punishable by death. As a matter of fact, in accordance with Article 4 of Decree Law 46-82 of July 1st, 1982 which created the Courts of Special Jurisdiction, in the future, those responsible for the following crimes will be punished with the death penalty:
Article 201 (kidnapping or abduction), 283 (aggravated arson), 286 (disabling of defenses), 287 (fabrication or possession of explosive materials), 289 (railroad disaster), 290 (attempt against other means of transportation), 294 (attempts against the safety of public utilities), 299 (piracy), 300 (air piracy), 302 (poisoning of water or foods or medicinal substances), 359 (treason by a Guatemalan National), 360 (attempts against the integrity or independence of the State), 361 (treason by a foreign resident), 376 (genocide), 391 (terrorism), 401 (cache of arms or ammunition), 404 (traffic in explosives).
4. Beginning on March 23, 1982, the violence which characterized Guatemala during recent years and which, as the IACHR pointed out in its first report, translated into an excessively high number of lost lives, began to diminish in certain aspects, although in others, as it will later be seen, that violence has acquired new manifestations.
5. In that sense, when studying the right to life under the Government of General Efrain Ríos Montt, the Commission feels that it is necessary to distinguish the situation that has developed in urban centers from that which developed in the rural areas. Due to its particular importance, the Commission will deal with the Courts of Special Jurisdiction in a detailed manner.
6. The Commission must point out that the recommendation from its previous report,--made again to the Government of General Ríos Montt as one of its “Preliminary Recommendations” upon conclusion of its on-site observation—of investigating and punishing with the full force of the law those responsible for the illegal executions and disappearances, not only has not been complied with, but the authors of those deaths were protected by the amnesty decreed by General Ríos Montt, as indicated in Chapter I, letter H.
B. Violence in Urban Centers
1. In its previous report, the IACHR indicated that the frightening threats, including the publishing of lists containing the names of persons sentenced to death by the clashing groups and factions; the kidnappings and arbitrary arrests with subsequent disappearances; the uncovering of clandestine cemeteries; the innumerable attempts on persons and the daily appearance, throughout the country, of mutilated bodies with signs of having suffered brutal tortures before being machine gunned to death, had created in Guatemala a situation where total disregard for human life predominated.3
2. The Commission has no doubt that one of General Ríos Montt's primary objectives was to end that alarming situation. He so stated it during the meeting with the Commission, when on several occasions he said to the members of the Commission that “you will not see any more bodies on the streets,” indicating that his Government controlled the public order and would not tolerate that type of crime.
3. To that end, the Government had announced the suppression of paramilitary groups, which in the past brought a decentralization of violence, now trying to give the Army and the Police the monopoly in the use of force. With the dismantling of those paramilitary groups, which primarily operated in urban areas, violence in Guatemala City and the other main urban areas has diminished considerably.
4. According to the information and testimony received by the Commission, the number of kidnappings, disappearances and assassinations had been considerably reduced beginning on March 23, 1982, when the Army took effective control, patrolling the streets of Guatemala City and major cities in the country 24 hours a day. For that reason, the Commission has sound basis to presume that in those cases of kidnappings and subsequent disappearances there was participation by the armed agents of the State.4
5. The Commission heard credible testimonies on the reduction of violent deaths, as, for example by Dr. Abel Giron Ortiz, Chief of the Forensic Medicine Service of the Department of Guatemala. Dr. Giron Ortiz supported his testimony with statistical data according to which, beginning on March 23, 1982, there had been a considerable reduction in violent deaths in the capital city of the Republic. Dr. Giron Ortiz added that, during 1981 and until March of 1982, there were between 230 and 250 autopsies done a month, numbers which began to significantly diminish from April of 1982 on, to the point that the number of autopsies done during the month of the interview did not reach 200.5
6. The Commission considers that the number of autopsies done is an element of proof of relative validity because, in many cases—particularly in the rural areas—the bodies of persons who have suffered a violent death do not turn up immediately or the autopsy is simply not done. Nevertheless, the Commission also feels that the numbers provided, together with other facts that the Commission has been able to gather, allows it to conclude that, at least in the capital of Guatemala, violent deaths have diminished beginning in March of 1982.6
7. Although the Commission recognized that the population of Guatemala City and the major departmental capitals now enjoy more protection with respect to the right to life, it, at the same time believes that violence has not disappeared and that, to a significant degree, what has occurred is that there has been a change in the strategy of terror in terms of methods or systems used. In effect as we will see, indiscriminate killings, the death squadrons, the publication of lists of persons sentenced to death by the paramilitary groups, the assassinations of community leaders that existed before the coup were replaced by the Courts of Special Jurisdiction which functioned in secret and were empowered to apply the death penalty.
C. Executions decreed by the Court of Special Jurisdiction
1. The Commission feels that on this subject two aspects must be considered: the large number of crimes punishable by the death penalty—which will be the subject of the following paragraphs—and the composition, functioning and characteristics of the Courts of Special Jurisdiction, which will be covered in Chapter IV.
2. The IACHR had knowledge of the activities of the Courts of Special Jurisdiction even before initiating its on-site observation in Guatemala. In effect, at 5:30 am., on September 18, 1982, while the IACHR was holding its 57th session in San José, Costa Rica, it was informed that the Courts had sentenced to death Messrs. Julio César Vásquez Juárez, Julio Hernández Perdomo, Marcelino Marroquín and Jaime de la Rosa Rodríguez. The IACHR, through its Acting President, Lic. César Sepúlveda, embarked, via telephonic communications, on an intense effort to have the execution of the sentence halted. His efforts were in vain and it was impossible to locate a person with sufficient authority to attend to the request. The sentence was executed at 6:00 am. On September 18, 1982, 3 days prior to the arrival in Guatemala of the IACHR to initiate its on-site observation of that country.
3. The death of those four persons at the hands of a firing squad of the regular army of Guatemala, carrying out a sentence imposed by the Court of Special Jurisdiction—which functioned in secret, without anyone's knowledge of its composition, location or how the proceedings were conducted—produced in Guatemala, as the Commission later confirmed, a profound consternation reviving in vast sectors of the population a feeling of uncertainty and insecurity.
4. On the same day of its arrival in Guatemala, the Commission expressed to President Ríos Montt its preoccupation with the functioning of the Courts of Special Jurisdiction and the latest killings by firing squads. According to notes taken by the IACHR Secretariat, the actual words of General Ríos Montt's response were:
They are not the last ones (the shootings by firing squads). They are the first ones. Previously, the bodies of persons executed turned up on the streets. Each person killed whomever he wanted to kill. The courts did not impart justice. In seeing that no justice was done, each person killed on his own. In assuming the Presidency, I assumed responsibility for the trials. It is to set legal precedents.
Further on, President Ríos Montt added:
I am the one who makes the laws. I guarantee the people a just use of force. Instead of bodies on the streets, we are going to shoot those committing crimes. I am President, although, de facto; but I say that I am a butler, because now, my job is to clean the house…
During its stay in the Republic of Guatemala, the Commission reiterated to the different government authorities with whom it had the opportunity to meet, its deep concern regarding the practice of those executions, urging, at all times, the elimination of the death penalty and the suspension of executions resulting from trials entrusted to the Courts of Special Jurisdiction, whose procedural mechanisms it tried to learn.
6. Upon conclusion of the on-site observation, the Commission forwarded to the Government of Guatemala a document containing Preliminary Recommendations,7 which, due to their urgency and importance, it requested the Government of Guatemala to put into practice immediately and where, among others, it particularly exhorted the Government to suspend the execution of death sentences and to adjust the functioning of the Courts of Special Jurisdiction to the due process norms contained in the American Convention on Human Rights.
7. As a consequence of these recommendations, the Government of Guatemala, with respect to the executions, sent a cable communication to the Commission advising that, in view of the Commission's recommendations, the Government of Guatemala had decided to suspend the executions sine die. In his communications dated October 26, 1982, addressed to the Executive Secretary of the Commission, the Minister of Foreign Affairs states:
IT IS MY PLEASURE TO INFORM YOU THAT THE PRESIDENT OF THE REPUBLIC, GENERAL JOSÉ EFRAIN RÍOS MONTT, HAS ORDERED THE SUSPENSION SINE DIE OF THE EXECUTIONS OF PERSONS CONVICTED BY THE COURTS OF SPECIAL JURISDICTION WHILE THE JUDICIAL PROCESS IS BROADENED TO ESTABLISH THE APPELLATE PROCEDURES THAT MAY BE USED BY THE CONVICT AND THUS PROVIDE FOR HIS BETTER DEFENSE, IN OBSERVANCE OF THE RECOMMENDATIONS MADE ON THE SUBJECT BY THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS IN ITS RECENT VISIT TO GUATEMALA. ACCEPT YOUR EXCELLENCY EXECUTIVE SECRETARY THE RENEWED ASSURANCES OF MY HIGHEST CONSIDERATION.
EDUARDO CASTILLO ARRIOLA
MINISTER OF FOREIGN AFFAIRS8
8. For that reason, when the Commission thought that there would not be any more deaths by firing squads, it was with astonishment that on January 24, 1983, it received several complaints according to which another four persons would be shot to death in the following days as a result of sentences handed down by Courts of Special Jurisdiction and in which the complainants alleged a number of irregularities.
9. On that same day, the Commission opened a case under number 9038 and rushed the following telegraph message to the Government of Guatemala:
HIS EXCELLENCY EDUARDO CASTILLO ARRIOLA
MINISTER OF FOREIGN AFFAIRS
GUATEMALA CITY, GUATEMALA
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS HAS RECEIVED FOLLOWING COMPLAINT. “WALTER MARROQUIN, SERGIO MARROQUIN, HECTOR HAROLDO MORALES LOPEZ AND MARCO A. GONZÁLEZ, ALLEGEDLY MEMBERS OF THE CLANDESTINE ORGANIZATION POOR PEOPLE'S GUERRILLA ARMY (EGP) WOULD BE EXECUTED NEXT FRIDAY JANUARY THE 28, IF THE DEATH SENTENCE THAT THE EMERGENCY COURTS MAY HAVE IMPOSED ON THEM AS THE PRESUMED AUTHORS OF THE KIDNAPPING OF MISS SILVIA JIMÉNEZ DE LA PEÑA WERE TO BE CONFIRMED. COMPLAINT ALSO STATED THAT NONE OF THE ACCUSED HAS BEEN ALLOWED TO BE REPRESENTED AND DEFENDED BY COUNSEL CHOSEN BY THEIR RELATIVES NOR HAVE THEY BEEN ALLOWED TO INTRODUCE PROOF OF THEIR INNOCENCE BEFORE THE COURTS HEARING THIS CASE. IN THE APPEAL GRANTED, COUNSEL HAS NOT BEEN ABLE TO LEARN THE SITUATION WITH RESPECT TO THE PROCEEDINGS NOR HAVE THEY BEEN GRANTED ACCESS TO DEFEND THEIR CLIENTS, WHO ARE CLOSE TO BEING SENTENCED TO DEATH DESPITE NOT HAVING BEEN ALLOWED THE GUARANTEES OF DUE PROCESS, DEEPLY CONCERNED BY THE TENOR OF THE PRECEDING COMPLAINT, THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, WITHOUT PREJUDGING THE ADMISSIBILITY OF THE SAME, TAKES THE LIBERTY OF FORWARDING IT TO THE ENLIGHTENED GOVERNMENT OF GUATEMALA, SO THAT IT MAY INFORM AS TO THE EXTENT OF THE SAME, AND KINDLY REQUEST TO CONVEY TO HIS EXCELLENCY GENERAL EFRAIN RÍOS MONTT, THAT IN THE EVENT THE COURT OF APPEALS CONFIRMS THE DEATH SENTENCE, THE SAME BE COMMUTED.
WE TAKE THIS OPPORTUNITY TO EXPRESS TO YOUR EXCELLENCY OUR ASSURANCES OF OUR HIGHEST CONSIDERATION.
MARCO G. MONROY CABRA EDMUNDO VARGAS CARREÑO
CHAIRMAN EXECUTIVE SECRETARY
10. In response, the Government of Guatemala sent the Commission the following cable:
MR. EDMUNDO VARGAS CARREÑO
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS
I MAKE REFERENCE TO YOUR MESSAGE OF THE 25TH OF THE PRESENT MONTH RELATING TO IMPOSITION OF DEATH PENALTY BY COURTS OF SPECIAL JURISDICTION TO HECTOR HAROLDO MORALES LOPEZ, WALTER VINICIO MARROQUIN GONZÁLEZ, SERGIO MARROQUIN GONZÁLEZ AND MARCO A. GONZÁLEZ.
IN THAT RESPECT I BRING TO YOUR ATTENTION THAT IN CONSTITUTIONS OF THE REPUBLIC OF GUATEMALA AND PENAL CODE GOVERNING US FOR MANY YEARS THE DEATH PENALTY IS IMPOSED AS MAXIMUM SENTENCE, FOR THAT REASON WHEN THE GOVERNMENT OF GUATEMALA RATIFIED AMERICAN CONVENTION ON HUMAN RIGHTS EXPRESSED SPECIFIC RESERVATION WITH RESPECT TO THE APPLICATION OF THAT PENALTY TAKING INTO ACCOUT THAT IN GUATEMALA IT IS APPLIED AFTER INSTITUTING PROCEEDINGS WITH THE GUARANTEES OF DEFENSE AND PROCEDURES ESTABLISHED BY LAW, LET ME CLARIFY THAT THE DEATH PENALTY IS NOT APPLIED TO WOMEN, MINORS NOR BASED ON PRESUMPTIONS, FULL PROOF BEING INDISPENSABLE, PERHAPS A NEW CONSTITUTION IN FORCE IN GUATEMALA IN THE FUTURE MAY CHANGE THIS LEGAL SITUATION BUT FOR NOW, COURTS ARE REQUIRED IN EXTREME CASES PROVEN, TO APPLY DEATH PENALTY FOR THE SAKE OF JUSTICE. IN SPITE OF THE STATED POSITION ABOVE, I HAVE FORWARDED YOUR MESSAGE AS WELL AS THAT FROM OTHER INSTITUTIONS AND PERSONALITIES WHICH HAVE MADE A SIMILAR REQUEST ON HUMANITARIAN GROUNDS. IN CONCLUDING, LET ME REITERATE TO YOU THAT IT WILL BE COMPETENT COURTS THE ONES DETERMINING THE APPLICATION OF COMMUTATION OF THAT SENTENCE. FOR FURTHER INFORMATION I AM FORWARDING INSTRUMENT OF RATIFICATION GOVERNMENT OF GUATEMALA TO AMERICAN CONVENTION ON HUMAN RIGHTS, SIGNED APRIL 24TH, 1978, WHICH CONTAINS RESERVATION MENTIONED ABOVE.
KJELL EUGENIO LAUGERUD GARCÍA
PRESIDENT OF THE REPUBLIC OF GUATEMALA
THE HONORABLE CONGRESS OF THE REPUBLIC, BY DECREE NUMBER 6-78, ISSUED THE 30TH OF MARCH OF 1978, HAS GIVEN ITS APPROVAL TO THE AMERICAN CONVENTION ON HUMAN RIGHTS, SIGNED IN SAN JOSÉ DE COSTA RICA, THE 22ND OF NOVEMBER OF 1969, BEING THE DUTY OF THE EXECUTIVE BRANCH TO FORMULATE THE RESERVATIONS IT DEEMS APPROPRIATE TO SAFEGUARD THE LEGAL SYSTEM OF THE COUNTRY.
BY THE POWERS BESTOWED UPON ME BY THE CONSTITUTION OF THE REPUBLIC I RATIFY THE AMERICAN CONVENTION ON HUMAN RIGHTS WITH THE FOLLOWING RESERVATION:
THE GOVERNMENT OF GUATEMALA RATIFIES THE AMERICAN CONVENTION ON HUMAN RIGHTS, SIGNED IN SAN JOSE DE COSTA RICA, THE 22ND OF NOVEMBER OF 1969, EXPRESSING ITS RESERVATION WITH RESPECT TO ARTICLE 4, PARAGRAPH 4, OF THE SAME, SINCE THE CONSTITUTION OF THE REPUBLIC OF GUATEMALA, IN ARTICLE 54, ONLY EXCLUDES FROM THE APPLICATION OF THE DEATH PENALTY POLITICAL CRIMES BUT NOT COMMON CRIMES RELATED THERETO.
AND I ORDER THAT IT BE PUBLISHED SO THAT IT BE OBSERVED AS A LAW OF THE REPUBLIC.
IN FAITH OF WHICH I SIGN THE PRESENT INSTRUMENT OF RATIFICATION, AUTHORIZED WITH THE MAXIMUM SEAL OF THE REPUBLIC AND ENDORSED BY THE MINISTER OF FOREIGN AFFAIRS, IN THE CITY OF GUATEMALA, ON THE TWENTY SEVENTH DAY OF APRIL ONE THOUSAND NINE HUNDRED AND SEVENTY EIGHT.
KJELL EUGENIO LAUGERUD GARCÍA
PRESIDENT OF THE REPUBLIC OF GUATEMALA
THE MINISTER OF FOREIGN AFFAIRS
ADOLFO MOLINA ORANTES
EDUARDO CASTILLO ARRIOLA
MINISTER OF FOREIGN AFFAIRS
11. Deeply concerned by the obvious intention of carrying out, at all costs, the alleged firing squad executions ordered by the Court of Special Jurisdiction and the erroneous interpretation the Government was giving the reservation expressed at the time of the ratification of the American Convention, on January 26, 1983, the Commission forwarded a new message to the Government of Guatemala requesting the commutation of the sentence and whose text reads as follows:
DR. EDUARDO CASTILLO ARRIOLA
MINISTER OF FOREIGN AFFAIRS
I HAVE THE HONOR OF ACKNOWLEDGING RECEIPT OF KIND TELEX FROM YOUR EXCELLENCY DATED THE 25TH OF THE MONTH IN COURSE BY WHICH YOU INFORM THAT WITH RESPECT TO THE IMPOSITION OF THE DEATH PENALTY BY COURTS OF SPECIAL JURISDICTION, IN CONSTITUTION OF THE REPUBLIC OF GUATEMALA AND PENAL CODE GOVERNING FOR MANY YEARS, THE DEATH PENALTY IS IMPOSED AS MAXIMUM SENTENCE, REASON WHY WHEN THE GOVERNMENT OF GUATEMALA RATIFIED AMERICAN CONVENTION ON HUMAN RIGHTS EXPRESSED SPECIFIC RESERVATION WITH RESPECT TO THE APPLICATION OF SAID PENALTY, TRANSCRIBING, IMMEDIATELY AFTER, THE TEXT OF THE INSTRUMENT OF RATIFICATION SIGNED APRIL 27TH, 1978.
FOR THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS I AM GRATEFUL FOR THE CONTENT OF YOUR CABLE COMMUNICATION INFORMING HAVING TRANSMITTED MESSAGE FROM THIS ORGANIZATION AS WELL AS THAT OF OTHER INSTITUTIONS AND PERSONALITIES WHICH HAVE MADE A SIMILAR REQUEST FOR THE COMMUTATION OF THE APPLICATION OF THE DEATH SENTENCE TO HECTOR HAROLDO MORALES LÓPEZ, WALTER VINICIO MARROQUÍN GONZÁLEZ, SERGIO MARROQUÍN GONZÁLEZ AND MARCO A. GONZÁLEZ, EFFORTS INSPIRED ON HUMANITARIAN SENTIMENTS AND ALSO PROTECTED IN THE SAME CONSTITUTIONAL TEXT CITED BY YOUR EXCELLENCY.
WE TAKE THIS OPPORTUNITY TO EXPRESS TO YOUR EXCELLENCY THE RENEWED ASSURANCES OF OUR HIGHEST CONSIDERATION.
MARCO G. MONROY CABRA EDUARDO VARGAS CARREÑO
CHAIRMAN EXECUTIVE SECRETARY
12. Later, the Commission received new complaints which stated that in addition to the four persons indicated, the following persons had also been sentenced to death by the Courts of Special Jurisdiction; Pedro Roxon Tepec, Carlos Subuyug, Edgar Daniel Aldana, Alfonso Bonilla Chacon, Fernando Contreras y Contreras and Eleobardo Alvarez.
13. Extremely concerned by the new information and by the lack of response to the cable communications and telephonic efforts made by the Executive Secretary, under instructions of the Commission, with the Minister of Foreign Affairs in which the Executive Secretary reminded the Minister that the imposition of the death penalty to crimes which did not carry that penalty at the time Guatemala ratified the American Convention on Human Rights contradicted Article 4, paragraph 2, of that instrument, the Commission decided to send a new message on February 9, which read as follows:
DR. EDUARDO CASTILLO ARRIOLA
MINISTER OF FOREIGN AFFAIRS
I HAVE THE PLEASURE OF REFERRING TO YOUR KIND CABLE COMMUNICATION DATED JANUARY 26TH, 1983, WITH RELATION TO THE ANNOUNCED APPLICATION OF THE DEATH PENALTY BY COURTS OF SPECIAL JURISDICTION TO WALTER AND SERGIO MARROQUÍN, HECTOR MORALES, MARCO GONZÁLEZ, PEDRO ROXON TEPEC, CARLOS SUBUYUG, EDGAR DANIEL ALDANA, ALFONSO BONILLA CHACÓN, FERNANDO CONTRERAS Y CONTRERAS AND ELEOBARDO ALVAREZ, IN RESPONSE AND BROADENING LAST INTER-AMERICAN COMMISSION ON HUMAN RIGHTS CABLEGRAM, IT BEHOOVES ME TO INFORM YOU THAT THE IACHR FINDS THAT THE IMPOSITION OF SAID PENALTY OPENLY CONTRADICTS THE LAST PART OF PARAGRAPH 2, ARTICLE 4 OF THE AMERICAN CONVENTION ON HUMAN RIGHTS TO WHICH GUATEMALA EXPRESSED NO RESERVATION AT THE TIME OF RATIFICATION NOR AT ANY OTHER TIME AND WHICH STATES:
NOR ITS APPLICATION (THE DEATH PENALTY) BE EXTENDED TO CRIMES TO WHICH IS NOT CURRENTLY APPLIED.
IN EFFECT, NONE OF THE CRIMES COVERED IN THE ARTICLES OF THE PENAL CODE MENTIONED IN ARTICLE 4 OF LAW DECREE 46082 ORIGINATOR OF THE COURTS OF SPECIAL JURISDICTION AND WHICH AUTHORIZES THE PUNISHMENT9 AND CONSIDERING THAT ARTICLE 7 OF THE FUNDAMENTAL STATUTE OF GOVERNMENT CURRENTLY GOVERNING GUATEMALA STATES: “GUATEMALA, AS PART OF THE INTERNATIONAL COMMUNITY, WILL FULLY COMPLY WITH ITS INTERNATIONAL OBLIGATIONS, ABIDING, IN ITS RELATIONS WITH THE OTHER STATES, BY THE RULES OF THIS STATUTE OF GOVERNMENT, BY INTERNATIONAL TREATIES AND BY THE RULES OF INTERNATIONAL LAW ACCEPTED BY GUATEMALA”, AND HAVING GUATEMALA ACCEPTED WITHOUT RESERVATIONS IN RATIFYING THE AMERICAN CONVENTION ON HUMAN RIGHTS, THAT IN THE FUTURE, THE IMPOSITION OF THE DEATH PENALTY WOULD NOT BE EXTENDED TO CRIMES WHICH DID NOT CARRY SUCH PENALTY AT THE TIME OF RATIFICATION, THE COMMISSION URGES YOUR EXCELLENCY'S GOVERNMENT THAT IN OBSERVANCE OF ARTICLE 4, PARAGRAPH 2, OF THE ABOVE MENTIONED CONVENTION IT RESCIND THE DEATH SENTENCES IMPOSED BY THE COURTS OF SPECIAL JURISDICTION AND AFTERWARDS MODIFY ARTICLE 4 OF LAW DECREE 46-82.
WE TAKE THIS OPPORTUNITY TO EXPRESS TO YOUR EXCELLENCY THE RENEWED ASSURANCES OF OUR HIGHEST CONSIDERATION.
MARCO GERARDO MONROY CABRA EDMUNDO VARGAS CARREÑO
CHAIRMAN EXECUTIVE SECRETARY
14. The Commission received no response to that communication. On the contrary, in the early morning of March 3, 1983, with only a few hours of advance notice, and several days before the arrival of Pope John Paul II in Guatemala as part of his historic visit to Central America, the shooting by firing squad of Messrs. Walter Vinicio Marroquín González, Sergio Roberto Marroquín González, Héctor Morales López, Carlos Subuyug Cuc, Pedro Raxon Tepet and Marco Antonio González, took place in spite of all the efforts made to prevent those executions, including those undertaken by the Pope himself through the Papal Nuncio in Guatemala.
15. On the same day the Government of Guatemala released the following statement:
THIS MORNING SIX PERSONS TRIED FOR VERY SERIOUS CRIMES AND SENTENCED TO DEATH ON TWO INSTANCES BY COURTS OF SPECIAL JURISDICTION AFTER THE SUPREME COURT OF JUSTICE DENIED THE APPEAL FOR AMPARO FILLED BY THE ACCUSED, WERE SHOT TO DEATH.
GUATEMALAN LEGISLATION CONTEMPLATES THE DEATH PENALTY ONLY FOR SERIOUS CRIMES PRECISELY DEFINED IN OUR PENAL (CRIMINAL) SYSTEM, AND IT IS APPLIED IN THOSE CASES WHERE THE GUILT OF THE ACCUSED IS FULLY PROVEN IN THE CORRESPONDING PROCESSES.
TRIALS CONDUCTED BY THE COURTS OF SPECIAL JURISDICTION OBSERVE ALL THE GUARANTEES OF DUE PROCESS, PARTICULARLY THE RIGHT TO A DEFENSE, SINCE THE ACCUSED ARE ASSISTED BY DEFENSE COUNSEL FROM THE MOMENT OF THEIR INTERROGATION.
THE VARIOUS CRIMINAL ACTS COMMITTED BY THE ACCUSED TYPIFY THE CRIME OF TERRORISM WHICH IS CONSIDERED A CRIME AGAINST HUMANITY AND FOR THAT REASON, REPUDIATED BY THE INTERNATIONAL COMMUNITY.
THREE OF THEM, THE ACCUSED, BROTHERS WALTER VINICIO AND SERGIO ROBERTO MARROQUÍN GONZÁLEZ AND HÉCTOR MORALES LÓPEZ, WERE FOUND GUILTY OF KIDNAPPING, EXTORSION, AND OF HAVING INJURED THEIR VICTIM, MRS. SILVIA XIMENA DE LA PEÑA FRATTA DE LÓPEZ, WHOSE FAMILY WAS FORCED TO PAY RANSOM MONEY TO OBTAIN HER FREEDOM. AFTERWARDS, THE ACCUSED, TRIED TO EXACT ANOTHER Q.50,000.00 (US$50,000) FROM THE FAMILY AND THEIR CAPTURE WAS EFFECTED WHEN THEY WERE RECEIVING THE EXTORSION PAYMENT. ALL THREE WERE RECOGNIZED BY THE VICTIM IN A LINE UP OF CONVICTS. CARLOS SUBUYUG CUC, PEDRO ROXON TEPET AND MARCO ANTONIO GONZÁLEZ, WERE FOUND GUILTY OF TERRORISM AND SUBVERSIVE ACTIVITIES, SHAMELESSLY CONFESSING, FULLY AND FREELY, AND BOASTING OF HAVING COMMITTED THE CRIMES OF TERRORISM THEY WERE CHARGED WITH.
THE DEATH PENALTY HAS EXISTED IN GUATEMALAN LEGISLATION FOR MORE THAN 50 YEARS AND IS APPLICABLE TO SERIOUS CRIMES COMMITTED NOW WHEN THE COUNTRY IS UNDER A STATE OF SIEGE AND THE PUBLIC ORDER LAW IS IN FORCE, WHICH IS JURIDICAL NECESSITY TO FIGHT SUBVERSION AND COMMON CRIMINALS WHO, LATELY, HAVE PLACED IN PERIL THE SAFETY AND STABILITY OF THE FAMILY, SOCIETY AND STATE ITSELF.
THE SUPREME COURT OF JUSTICE, ACTING AS COURT OF AMPARO, FULLY ANALYZED THE PROCEEDINGS INSTITUTED TO SEE IF, IN THEM, ALL THE RIGHTS OF THE ACCUSED HAD BEEN GUARANTEED. AFTER EXAMINING THEM IT WAS DETERMINED THAT THERE WAS NO VIOLATION OF ANY RULES OF LAW AND, CONSEQUENTLY, THE APPEAL FOR AMPARO SUBMITTED BY THE ACCUSED'S DEFENSE LAWYERS WAS DENIED.
THE APPEAL FOR AMPARO IS AN INSTRUMENT OF LEGAL CONTROL WHOSE PURPOSE IS TO GUARANTEE THAT GOVERNMENT MEASURES OR COURT RESOLUTIONS ARE ISSUED WITH DUE RESPECT FOR CIVIL LIBERTIES, THE RIGHTS OF MEN AND THE FUNDAMENTAL RULES WHICH GOVERN THE JURIDICAL LIFE OF THE COUNTRY, PREVENTING ABUSES OF POWER WITH THE OBJECTIVE OF ENSURING THE LEGAL SYSTEM, THEREFORE, BY THE SUPREME COURT OF JUSTICE, ACTING AS COURT OF AMPARO, DENYING THE APPEAL, THE SENTENCES DICTATED AGAINST THE ACCUSED WERE CONFIRMED AND THE LEGAL SYSTEM DEMANDED THE EXECUTION OF THE SENTENCES PRONOUNCED IN ACCORDANCE WITH THE LAW AND THE SYSTEM OF SEPARATION OF POWERS OF THE STATE AND IN FULL EXERCISE OF ITS SOVEREIGNTY.
THE APPEAL FOR GRACE, DISAPPEARED FROM GUATEMALAN LEGISLATION BEING CONSIDERED ANACHRONISTIC. PARDON, IS GENERAL IN CHARACTER AND DOES NOT APPLY TO VERY SERIOUS CRIMES WHICH HAVE SHOCKED THE CONSCIENCE OF THE CITIZENRY, IN WHICH CASES SPECIFIC LAWS EXPRESSLY OMIT IT, AS IN THE CASE OF THE LAW OF AMPARO.
16. As it was expected, these executions and the circumstances in which they took place produced deep consternation throughout the world. Thus, that same day, March 3, an official spokesman of the Vatican states that: “In learning of the dramatic, unexpected and incredible news, the Holy Father has expressed his deepest sorrow, particularly since he is on the eve of his already scheduled visit to that country.”10
17. Moreover, the Government of Honduras, due to the fact that one of the men shot to death, Marco Antonio González, was an Honduran national, strongly condemned the incident through a statement from the Ministry of Foreign Affairs indicating, at the same time, the several contradictions incurred by the Government of Guatemala, which had even assured the Foreign Ministry of Honduras that the “possibility of the execution of González was out of the question”, whom the Honduran Government had described as “a compatriot who has been carefully investigated by the Honduran authorities, not finding any criminal record nor any connection with terrorist groups.” The official statement of the Government of Honduras concludes expressing that “the news of the execution of Marco Antonio González has caused it enormous surprise and profound sorrow since the judicial process that led him to his death was vitiated in form and substance.”
18. For its part, the IACHR, also on the same day that the six persons were executed, sent the Government of Guatemala the following cablegram, which it later released to the public.
DR. EDUARDO CASTILLO ARRIOLA
MINISTER OF FOREIGN AFFAIRS
INTER-AMERICAN COMMISSION ON HUMAN RIGHTS HAS LEARNED WITH ASTONISHMENT THAT IN THE EARLY MORNING OF TODAY, IN EXECUTION OF SENTENCES DICTATED BY COURTS OF SPECIAL JURISDICTION, SOME OF THE PERSONS WHO HAD BEEN TRIED BY THOSE COURTS WERE SHOT TO DEATH IN GUATEMALA. THE ASTONISHMENT IS ALL THE GREATER SINCE THIS COMMISSION HAD ADDRESSED THE GUATEMALAN GOVERNMENT THROUGH CABLE COMMUNICATION DATED FEBRUARY 9, 1983, URGING THAT IN OBSERVANCE OF ITS INTERNATIONAL COMMITMENTS, WHICH IT PROFESSES TO RESPECT IN ARTICLE 7 OF THE FUNDAMENTAL STATUTE OF GOVERNMENT, IT RESCIND THE DEATH SENTENCE DICTATED BY THE COURTS OF SPECIAL JURISDICTION AND LATER MODIFY DECREE LAW 46-82, ORIGINATOR OF THOSE COURTS.
AT THAT TIME, IT WAS EXPRESSED TO THE GOVERNMENT OF GUATEMALA THAT THE IACHR FINDS THAT THE IMPOSITION OF SUCH PENALTY IS IN OPEN CONTRADICTION TO WHAT IS STATED IN THE LAST PART OF PARAGRAPH 2 ARTICLE 4, OF THE AMERICAN CONVENTION ON HUMAN RIGHTS TO WHICH GUATEMALA EXPRESSED NO RESERVATION AT THE TIME OF RATIFICATION NOR AT ANY OTHER TIME AND ACCORDING TO WHICH THE IMPOSITION OF THE DEATH PENALTY WOULD NOT BE EXTENDED TO CRIMES WHICH DID NOT PREVIOUSLY CARRY SUCH PENALTY, WHICH WAS THE CASE OF THE PERSONS EXECUTED, WHO HAD BEEN TRIED AND SENTENCED TO DEATH FOR CRIMES WHICH WERE NOT SANCTIONED WITH THE DEATH PENALTY IN THE PENAL CODE OF GUATEMALA. THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS DEPLORES THAT THE GOVERNMENT OF GUATEMALA PROCEEDED WITH THE EXECUTION OF THE SENTENCES IN QUESTION, AND THAT IT HAS YET TO RESPOND TO THE REFERRED CABLE COMMUNICATION AND EXHORTS IT TO, IN APPLICATION OF PARAGRAPH 2 ARTICLE 4, OF THE AMERICAN CONVENTION ON HUMAN RIGHTS, ABSTAIN FROM IMPOSING THE DEATH PENALTY FOR CRIMES NOT CARRYING THAT PENALTY IN THE PENAL CODE IN FORCE AT THE TIME SAID CONVENTION WAS RATIFIED, AND TO RESPECT AND DULY OBEY THE INTERNATIONAL COMMITMENTS IN THEIR MOST FAVORABLE INTERPRETATION FOR THE PROTECTION OF LIFE AND THE OTHER HUMAN RIGHTS.
I TAKE THIS OPPORTUNITY TO EXPRESS, YOUR EXCELLENCY THE RENEWED ASSURANCES OF MY HIGHEST CONSIDERATION.
MARCO G. MONROY CABRA DAVID J. PADILLA
CHAIRMAN ASSISTANT EXECUTIVE SECRETARY
19. On March 15, 1983, the Government of Guatemala responded to this last IACHR communication, in the following terms:
DR. MARCO GERARDO MONROY CABRA
CHAIRMAN OF THE INTER-AMERICAN COMMISSION
ON HUMAN RIGHTS
DR. DAVID PADILLA
ASSISTANT EXECUTIVE SECRETARY
ORGANIZATION OF AMERICAN STATES
I ACKNOWLEDGE RECEIPT OF YOUR TELEX 351 OF MARCH 3, OF THIS YEAR. I WOULD LIKE TO POINT OUT TO YOU THAT PARAGRAPH 2, OF ARTICLE 4, OF THE AMERICAN CONVENTION ON HUMAN RIGHTS TEXTUALLY STATES THAT: “IN THOSE COUNTRIES WHICH HAVE NOT ABOLISHED THE DEATH PENALTY, THIS COULD ONLY BE IMPOSED FOR THE MOST SERIOUS CRIMES, IN COMPLIANCE WITH VERIFIED SENTENCE FROM COMPETENT COURT AND IN ACCORDANCE WITH A LAW THAT ESTABLISHES SUCH PENALTY, ENACTED PRIOR TO THE COMMISSION OF THE CRIME. ITS APPLICATION WILL NEITHER BE EXTENDED TO CRIMES TO WHICH IS NOT PRESENTLY APPLIED.” IN THE PROCEEDINGS IN WHICH THE DEATH PENALTY WAS IMPOSED, THE PROVISIONS OF THAT ARTICLE ARE FULLY MET SINCE:
A) IN GUATEMALA THE DEATH PENALTY HAS BEEN IN FORCE FOR MORE THAN FIFTY YEARS.
B) IT IS ONLY IMPOSED FOR VERY SERIOUS CRIMES.
C) IT IS ONLY EXECUTED IN COMPLIANCE WITH A VERIFIED SENTENCE OF A COMPETENT COURT.
D) THE COURTS OF SPECIAL JURISDICTION LAW, WHICH ESTABLISHED THE DEATH PENALTY AND EXPRESSLY CITES THE CRIMES WHICH CARRY THAT PENALTY, WAS PROMULGATED PRIOR TO THE COMMISSION OF THE CRIMES.
AS FAR AS THE CONVENTION ESTABLISHING THAT THE DEATH PENALTY MUST NOT BE IMPOSED ON CRIMES FOR WHICH IT WAS NOT INDICATED IN THE INTERNAL LEGISLATION OF A COUNTRY AT THE TIME OF RATIFYING THE CONVENTION, IT IS EVIDENT THAT THIS PRECEPT CANNOT LIMIT THE SOVEREIGN POWER OF THE STATES TO MODIFY THEIR INTERNAL CRIMINAL LEGISLATION, WHEN THE SPECIAL OR EXCEPTIONAL CIRCUMSTANCES IN A COUNTRY MAKES IT IMPERATIVE TO SANCTION WITH THE DEATH PENALTY THE COMMISSION OF SERIOUS CRIMES, AS A PROTECTIVE MEASURE FOR SOCIETY ITSELF.
THE COUNTRIES WHICH CONFRONT THE PROBLEM OF SUBVERSION, WHOSE ELEMENTS CONTINUOUSLY COMMIT SERIOUS COMMON CRIMES FOR POLITICAL PURPOSES, ARE OBLIGATED, BASED ON THE DUTY TO GUARANTEE THE SAFETY OF THE CITIZENRY, TO TAKE THE NECESSARY MEASURES TO COMBAT THE CRIMINALS, FOR THEY CONSTITUTE A PUBLIC DANGER AND THEIR ACTIONS ARE A THREAT TO THE POPULATION.
THEREFORE, A RIGID AND RESTRICTIVE INTERPRETATION OF THE AFOREMENTIONED DISPOSITION ONLY LEADS TO THE SITUATION THAT ANY STATE WHICH HAS RATIFIED THE CONVENTION IN QUESTION, IS DEPRIVED OF THE SOVEREIGN POWER TO MODIFY ITS INTERNAL LEGISLATION, WHICH WOULD NEGATE THE FACT THAT THE LAW, BY DEFINITION, IS ESSENTIALLY MODIFIABLE AND THAT IT MUST BE ADAPTED TO THE SOCIAL CHANGES—POSITIVE AND/OR NEGATIVE—WHICH TAKE PLACE IN ALL NATIONS.
BESIDES, IN RATIFYING THE AMERICAN CONVENTION ON HUMAN RIGHTS GUATEMALA EXPRESSED SPECIFIC RESERVATION IN THE SENSE THAT IT WOULD CONTINUE TO IMPOSE THE DEATH PENALTY TO COMMON CRIMES RELATED TO POLITICAL CRIMES.
THE RESERVATION MUST BE INTERPRETED IN GENERAL TERMS, SINCE THE FACT THAT PARAGRAPH 4 OF ARTICLE 4 OF THE CONVENTION WAS SPECIFICALLY CITED IS BECAUSE THAT IS WHERE THE PROHIBITION TO THE APPLICATION OF THE DEATH PENALTY TO COMMON CRIMES RELATED TO POLITICAL ONES IS CONTAINED, BUT THE RESERVATION SHOULD NOT IN ANY WAY BE INTERPRETED TO REFER ONLY TO THAT PARAGRAPH, BUT TO ANY PART OF THE CONVENTION WHERE THERE IS A SIMILAR RULE.
THE PERSONS WHO WERE EXECUTED WERE FOUND GUILTY OF SERIOUS COMMON CRIMES COMMITTED WITH POLITICAL MOTIVATIONS. THE ACCUSED WALTER VINICIO MARROQUÍN GONZÁLEZ, SERGIO ROBERTO MARROQUÍN GONZÁLEZ, AND HÉCTOR HAROLDO MORALES LÓPEZ, WERE FOUND GUILTY OF THE CRIMES OF KIDNAPPING AND EXTORTION.
THE ACTS OF WHICH THEY WERE ACCUSED ARE THE FOLLOWING: ON JULY 15, 1982, AT 14:00 HOURS, ON 20TH STREET AND AVENIDA LA REFORMA, ON ZONE 9 OF THE CAPITAL CITY, THEY KIDNAPPED MRS. SILVIA XIMENA DE LA PEÑA FRATTA DE LÓPEZ, WHOM THEY DRUGGED AND LATER TOOK TO “EL TRESOL” MOTEL LOCATED IN ZONE 8, AS WELL AS TO OTHER PLACES, AVOIDING BEING FOUND BY THE SECURITY FORCES, WHILE THEY KEPT THEIR VICTIM SEDATED AND WHOM THEY ALSO RAPED.
DURING THE KIDNAPPING THE ACCUSED WALTER VINICIO MARROQUÍN GONZÁLEZ, IDENTIFIED HIMSELF AS “COMMANDER FERNANDO” AND CLAIMED TO BELONG TO A DISSIDENT GROUP OF THE EGP. AS SUCH, HE DEMANDED OF DOCTOR ALEJANDRO ENRIQUE DE LA PEÑA, FATHER OF THE KIDNAP VICTIM, THE SUM OF SEVENTY FIVE THOUSAND QUETZALES (Q.75,000.00) IN EXCHANGE FOR HIS DAUGHTER'S FREEDOM AND THREATENED HIM THAT, IF HE DIDN'T PAY, THE KIDNAPPED WOMAN WOULD BE ASSASSINATED.
AFTER A SERIES OF NEGOTIATIONS, TELEPHONE CALLS AND PRESSURE BY THE KIDNAPPERS, THE FATHER OF THE VICTIM AGREED TO PAY TEN THOUSAND QUETZALES (Q.10,000.00) AND THE KIDNAPPED WOMAN WAS LEFT BY HER KIDNAPPERS AT THE MAC DONALD'S RESTAURANT ON ZONE 9, WHERE SHE WAS FOUND UNDER THE EFFECTS OF A DRUG.
DAYS LATER THE KIDNAPPED WOMAN RECEIVED A TELEPHONE CALL, HER INTERLOCUTOR IDENTIFIED HIMSELF ONCE MORE AS “COMMANDER FERNANDO” TELLING HER THAT HER FATHER SHOULD PAY AN ADDITIONAL FIFTY THOUSAND QUETZALES (Q.50,000.00) AS A WAR TAX UNDER THREAT OF KILLING HER TWO BROTHERS.
THE FATHER OF THE VICTIM DECIDED TO INFORM THE AUTHORITIES OF THE KIDNAPPING OF HIS DAUGHTER, THE RANSOM PAYMENT, HER LATER RELEASE, AS WELL AS THE NEW THREATS BEING MADE BY THE KIDNAPPERS.
IN ORDER TO CAPTURE THE KIDNAPPERS A PLAN WAS DEVISED, THERE WAS A PERIOD OF NEGOTIATIONS AND BARGAINING, AND FINALLY ACCEPTED PAYMENT OF THE WAR TAX, SETTING THE PLACE, DATE AND TIME OF PAYMENT.
THE PLAN WAS FOLLOWED TO ITS CONCLUSION. DOCTOR DE LA PEÑA WENT TO THE CONVENED SITE, PRESUMABLY CARRYING THE MONEY FOR THE WAR TAX, AND AT THE MOMENT HE WAS HANDING OVER THE MONEY THE AUTHORITIES APPEARED AND CAPTURED THE KIDNAPPERS.
THE ACCUSED WALTER VINICIO MARROQUÍN GONZÁLEZ, WHO DURING THE KIDNAPPING ACTED AS “COMMANDER FERNANDO” MET DOCTOR DE LA PEÑA AND HIS DAUGHTER WHEN THEY DISCUSSED THE SALE OF A LIFE INSURANCE POLICY.
CARLOS SUBUYUG CUJ, PEDRO RAXON TEPET AND MARCO ANTONIO GONZÁLEZ WERE FOUND GUILTY OF A NUMBER OF CRIMES SUCH AS POSSESSION OF EXPLOSIVE MATERIALS, KILLINGS BY PLACING BOMBS IN THE PATH OF MILITARY UNITS CAUSING SEVERAL DEATHS, ASSAULT AND ROBBERY OF INTERDEPARTMENTAL BUSES, WHICH CHARACTERIZED THE IMAGE OF TERRORISM, WHICH THE INTERNATIONAL COMMUNITY HAS CONSIDERED AS A CRIMINAL ACT TO BE CENSORED UNDER ANY CIRCUMSTANCES.
ALL THREE COMMITTED THE COMMON CRIMES WITH POLITICAL MOTIVES, SINCE THEY CONFESSED BEING MEMBERS OF THE CLANDESTINE GROUP CALLED THE POOR'S PEOPLE GUERRILLA ARMY (EGP).
THE DEFENSE LAWYERS OF ALL THE ACCUSED SUBMITTED AT THE OPPORTUNE TIME THE APPEAL FOR AMPARO, WHICH THE HONORABLE SUPREME COURT OF JUSTICE HEARD, AND AFTER DULY SUBSTANTIATING IT AND COMPLETING ALL THE STEPS OF THE PROCESS ESTABLISHED FOR THIS APPEAL, INCLUDING A PUBLIC HEARING REQUESTED BY THE DEFENSE COUNSEL, DENIED THE APPEAL SINCE IT DID NOT FIND VIOLATIONS OF ANY KIND OF THE PROVISIONS OF THE FUNDAMENTAL STATUTE OF GOVERNMENT AND IN ADDITION, VERIFIED THAT THE ACCUSED HAD A LEGAL TRIAL AND HAD, AT ALL TIMES, THE GUARANTEES OF A DEFENSE DURING TRIAL.
I MUST EXPRESS TO THE INTER-AMERICAN COMMISSION ON HUMAN RIGHTS, THAT ABOVE ALL, AS A SACRED DUTY OF THE PUBLIC POWER, UNRENOUNCEABLE, ALL GOVERNMENTS HAVE THE OBLIGATION OF MAINTAINING THE PUBLIC ORDER IN THE MANNER IN WHICH THE NATIONAL CIRCUMSTANCES DEMAND IT, AND NOT ACCORDING TO THE DESIGNS OF THOSE WHO ERECT THEMSELVES INTO INFLEXIBLE JUDGES TO CONDEMN ONLY ONE OF THE SIDES IN THE STRUGGLE. THIS DEFENSE OF THE PUBLIC ORDER, OF THE NATIONAL SECURITY, OF THE INTEGRITY OF THE PEOPLE WHO LIVE IN GUATEMALA, CANNOT BE CONSIDERED A VIOLATION OF THE AMERICAN CONVENTION ON HUMAN RIGHTS, AND MY GOVERNMENT FEELS THAT ADVERSE JUDGMENT CANNOT BE PASSED AGAINST THE LEGITIMATE ACTION OF GUATEMALA IN THE VITAL PRESERVATION OF ITS INSTITUTIONS, WHICH ARE THE BASIS FOR THE SECURITY AND PEACE OF THE NATION AND THAT ALL MEASURES DEEMED PERTINENT MAY BE TAKEN AGAINST GUATEMALA, BUT I CAN ASSURE YOU THAT NOT ONE OF THEM LESSENS THE RIGHT TO THE LEGITIMATE DEFENSE OF A STATE, IN THIS CASE GUATEMALA, A RIGHT AFFIRMED BY THE CHARTERS OF THE UNITED NATIONS AND THE ORGANIZATION OF AMERICAN STATES.
FINALLY, I BEG YOU GIVE THIS RESPONSE FROM MY GOVERNMENT THE WIDEST INTERNATIONAL DISSEMINATION WITH THE ABSOLUTE CONVICTION THAT IT WILL MAKE MANY STATESMEN, SOCIOLOGISTS, JURISTS, MORALISTS AND GOVERNMENTS SERIOUSLY REFLECT ON THE MATTER. IT IS VERY EASY TO BE ASTONISHED, AS YOU AFFIRM, WHEN ONE DOES NOT HAVE THE RESPONSIBILITY TO MAINTAIN THE DIGNITY, INTEGRITY AND THE IDENTITY OF A NATION.
ACCEPT THE RENEWED ASSURANCES OF MY HIGHEST CONSIDERATION.
EDUARDO CASTILLO ARRIOLA
MINISTER OF FOREIGN AFFAIRS
OF THE REPUBLIC OF GUATEMALA
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
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
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
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
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
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.
1 Article 4 of the American Convention on Human Rights or Pact of San José de Costa Rica, Right to Life, established that: 1. Every person has the right to have his life respected. This right shall be protected by law and, in general, from the moment of conception. No one shall be arbitrarily deprived of his life. 2. In countries that have not abolished the death penalty, it may be imposed only for the most serious crimes and pursuant to a final judgment rendered by a competent court and in accordance with a law establishing such punishment, enacted prior to the commission of the crime. The application of such punishment shall not be extended to crimes to which it does not presently apply. 3. The death penalty shall not be reestablished in states that have abolished it. 4. In no case shall capital punishment be inflicted for political offenses or related common crimes. 5. Capital punishment shall not be imposed upon persons who, at the time the crime was committed, were under 18 years of age or over 70 years of age; nor shall it be applied to pregnant women. 6. Every person condemned to death shall have the right to apply for amnesty, pardon, or commutation of sentence, which may be granted in all cases. Capital punishment shall not be imposed while such a petition is pending decision by the competent authority.
2 Until July 1, 1982, the Penal Code contemplated the death penalty only for the following crimes: Patricide, when there are contributing aggravating circumstances (Article 131); qualified murder, when there are aggravating circumstances (Article 132); qualified rape, if it results in the death of the victim and she is under 10 years of age (Article 175), abduction or kidnapping, if kidnap victim dies (Article 201); assassination of the President of the Republic, or Vice-President acting as President, if there were several aggravating circumstances (Article 383).
3 OAS document Ser.L/V/II.53, doc. 21, rev. 2, of October 13, 1981, page 38.
4 This problem will be analyzed in Chapter III, in the section dealing with disappearances.
5 According to the books the Commission examined at the Forensic Medicine Service of the Department of Guatemala, the number of autopsies done monthly between January of 1981 and March of 1982 were: 231 in January 1981; 247 in February; 220 in March; 190 in April; 228 in May; 208 in June; 245 in July; 263 in August; 167 in September; 237 in October; 214 in November; 295 in December; 230 in January 1982, 276 in February and 203 in March of that year. On the other hand, after the coup d'etat and up until the IACHR visit (September 1982) the statistics were: 171 in April, 184 in May; 144 in June; 160 in July and 198 in August.
6 Information provided by the Chief of Forensic Medicine Service of the Department of Guatemala:
AUTOPSIES DONE DURING THE MONTH OF JULY OF 1981
Firearms wounds.......... ........................................................................... 102
Wounds following an explosion.................................................................... 13
Machete wounds............ ............................................................................. 2
Other causes (traffic accidents, common illness, suicides, etc).... .................. 128
Total.... .................................................................................................... 245
AUTOPSIES PERFORMED DURING THE MONTH OF JULY 1982
Firearms wounds.......... ..............................................................................28
Wounds following an explosion......... ............................................................ 0
Machete wounds............ ............................................................................. 1
Other causes (traffic accidents, common illness, suicides, etc.)... .................. 131
Total.... ................................................................................................... 160
7 See Introduction, page 25 and following pages.
8 As can bee seen in the text of the Preliminary Recommendations, these went much further that the “broadening of the judicial process to establish the appellate procedures that may be used by the convicted person.” What the IACHR recommended simply was: to “modify the law creating the Courts of Special Jurisdiction adjusting the text of the same to the judicial guarantees indispensable to due process included in the American Convention on Human Rights, which should not be suspended even in emergency situations. To that end, the Commission feels that the Government could appoint a commission of Guatemalan jurists that could assist it in the drafting of a new text” and that “while the preceding recommendations are not carried out, all executions of death sentences be suspended.”
9 The crimes to which Article 4 of Law Decree 46082 imposed the death penalty, carried the following penalties under the Penal Code: Article 201: (Abduction or kidnapping), 8 to 15 years in prison, although the death penalty could be imposed on the person responsible for the crime when, as a result of the abduction or kidnapping, the kidnapped victim died; Article 283: (Aggravated Arson), 4 to 12 years in prison; Article 286: (Disabling of Defense), 1 to 6 years prison term; Article 287: (Fabrication or possession of explosive materials), prison term from 2 to 6 years; Article 289: (Railroad disaster, 4 to 12 years in prison; Article 290: (Attempts against the safety of maritime, fluvial or air transports), prison term from 2 to 5 years; Article 291: (Maritime, fluvial or air disaster), 4 to 12 years in prison; Article 292: (Attempt against other means of transportation), 1 to 3 years in prison. If abduction results from the attempt, the person responsible could be sentenced to a prison term from 2 to 5 years; Article 294: (Attempt against the safety of public utilities), 1 to 5 years in prison; Article 299 (Piracy), 3 to 15 years in prison; Article 300: (Hijacking), 3 to 15 years in prison; Article 302: (Poisoning of water or foods or medicinal substances), 3 to 8 years in prison; Article 359: (Treason by Guatemalan national), 10 to 20 years in prison; Article 360: (Attempts against the integrity or independence of the State), 10 to 20 years in prison; Article 361: (Treason by foreign resident), 5 to 15 years in prison; Article 376: (Genocide), 20 to 30 years in prison; Article 391: (Terrorism), 5 to 15 years in prison. If explosive materials are used or if as a result of the act any person is injured or killed, the person responsible for the act could be sentenced to a prison term from 10 to 30 years.
10 In addition, the Papal Nuncio in Guatemala, Monsignor Oriano Quilici, released the following statement: “Last February 16th, the Holy See, moved by humanitarian reasons and Christian charity and in keeping with its mission of promoting justice and peace in the world, officially expressed, through me, to the Guatemalan Chief of State its deep sorrow and concern for the executions carried out last September and for the possibility of new executions.
By express request of His Eminence Cardinal Agostino Casaroli, Secretary of State, this morning I have urgently requested an audience with His Excellency the President of the Republic, to formally and officially ask, in the name of the Holy Father John Paul II, the commutation of the death sentence for the six convicted men.
Unfortunately, I have just been informed that at daybreak today, the sentences had been carried out. This deplorable incident occurring so close to the projected visit of Pope John Paul II to Guatemala, is considered by the Holy See as 'incredible' for its possible serious repercussions worldwide, nationally and also at the Holy See itself.
At the same time, His Holiness John Paul II sent the following telegraphic message to the Episcopal Conference of Guatemala: 'As I prepare to meet the people of Guatemala in this pastoral visit which also aims to create a climate conducive to pacifying spirits, I cannot avoid thinking with immense sorrow on the recent executions carried out in that nation and invoke divine mercy for all the deceased of that country and of Central America, particularly those who have suffered a violent death. At the same time, I express sincere wishes that the visit may constitute an incentive toward the promotion and respect of the rights of man and to whose observance I referred yesterday talking to the members of the Inter-American Court of Human Rights. Joannes Paulus PP.II.'”
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.