CHAPTER II: THE INTER-AMERICAN HUMAN RIGHTS SYSTEM ANDRECENT PROTECTIVE INITIATIVES OF THE STATE
A. Obligations of the State and Initiatives to Strengthen the Applicable Normative Framework
1. Within the OAS system, Guatemala’s obligations in the sphere of human rights derive from the Charter of the OAS, the American Declaration of the Rights and Duties of Man, and most specifically, the American Convention on Human Rights, which it ratified on May 25, 1978. Guatemala subsequently accepted the contentious jurisdiction of the Inter-American Court on March 9, 1987. Guatemala became a Party to the Inter-American Convention to Prevent and Punish Torture on January 29, 1987, and to the Inter-American Convention on the Prevention, Punishment and Eradication of Violence against Women “Convention of Belém do Pará” on April 4, 1995.
2. During the year 2000, Guatemala has realized two especially noteworthy advances in demonstrating its commitment to the protection of human rights within the regional system. On February 25, 2000, the State deposited its instrument of ratification of the Inter-American Convention on Forced Disappearances. Given the history of the conflict, which included the practice of forced disappearances by State agents, the commitment to prevent, punish and eradicate this abhorrent violation has special resonance. It is, for that reason, particularly unfortunate that the instrument of ratification included a reservation, the first by any Party. The Commission analyzes this reservation in chapter V, concerning the right to life, and recommends the withdrawal of that reservation. In this regard, it is important to emphasize that, in its response to the draft report and its recommendations, the State indicated that “the Government has the political will to propose the withdrawal of this reservation to the Convention.”
3. Most recently, on October 5, 2000, Guatemala deposited its instrument of ratification of the Additional Protocol in the Area of Economic, Social and Cultural Rights “Protocol of San Salvador.” This important act is consistent with the priority given to achieving progress in the realization of these rights in the peace accords, a prioritization deriving from the role that injustices in these areas played in causing the conflict.
4. The Commission values the ratification of these instruments and recognizes this as a manifestation of a deepening State commitment to the values of the regional system. The Commission looks forward to working with the State in its efforts to fully implement the provisions of each instrument. Its analysis and recommendations relative to the question of disappearances in chapter V, infra, and to the protection of economic, social and cultural rights in chapter III, infra, are aimed at assisting the State in achieving further progress in these areas.
B. Recent Initiatives of Guatemala in Relation to Cases before the
5. The signing of the peace accord opened new possibilities for advances in the protection of human rights and further engagement in the inter-American human rights system. Pursuant to this opening, the Portillo administration has adopted an extremely positive approach to its obligations in relation to cases before the Commission.
6. On March 3, 2000, during hearings convened by the Commission on the occasion of its 106º period of sessions, the State declared that, as part of its policy in the area of human rights, it would undertake to comply with the recommendations issued by the Commission in reports 39/00 and 40/00, the first concerning 44 cases of extrajudicial execution in 1990 and 1991, and the second concerning 5 cases of forced disappearance dating from the same period. The State further indicated that would initiate dialogue with the petitioners toward the possible friendly settlement of a series of other cases being processed. In each of these cases, the State and the petitioners subsequently agreed to enter into negotiations with this purpose. These agreements were reached on the basis of the State’s express acknowledgement of its institutional responsibility for the violations denounced, its commitment to pursue justice, and its commitment to ensure reparations for the victims and their families.
7. In relation to compliance with the recommendations issued in Reports 39/00 and 40/00, on April 13, 2000, the State submitted a formal signed commitment to implement those. The State accepted responsibility for the facts determined by the Commission and the consequent violations of the Convention (as well as of the Constitution of Guatemala). It undertook to: locate the victims’ family members to ensure their right to compensation; to investigate, prosecute and punish those responsible, including, where possible, those responsible for the denial of justice; and to report to the Commission every four months on progress made.
8. On August 9, 2000, the President of the Republic of Guatemala, Alfonso Portillo, recognized the “institutional responsibility” of the State of Guatemala for the human rights violations denounced in the cases: Massacre of las Dos Erres (11.681), Marcos Fidel Quisquinay (12.199), Francisco Guarcas Cipriano (11.275), Finca “La Exacta” (11.382), Sergio Miguel Fuentes Chavez (11.254), Juan Humberto Ramos Cifuentes (11.544), and Juan José Méndez et al. (12.020), pending before the Commission. The recognition ceremony, held in Guatemala City, was attended by the following representatives of the Commission, Claudio Grossman, Member and Rapporteur for the country, Jorge Taiana, Executive Secretary, and Pablo Saavedra, attorney of the Secretariat. President Portillo declared the commitment of the State to pursue the friendly settlement of these cases and another series of cases, with the understanding that this would necessarily include the clarification of the facts in order to ensure the prosecution and punishment of those responsible, as well as legal and economic reparations for the victims or their families.
9. President Portillo declared that the State’s pursuit of these objectives was founded on the need to (1) repair the violations perpetrated, (2) recover the confidence of the population that, in cases of fundamental violations, they may seek just reparation including first and foremost prompt and effective justice, (3) compel governmental institutions to assure effective compliance with human rights, and (4) strengthen the regional system for the protection of human rights.
10. On January 10, 2001, in light of its earlier recognition of responsibility, the State of Guatemala compensated the families of the victims in the following cases: Juan Humberto Ramos and Cecilio Jax (case 11.544), Marcos Fidel Quisquinay Concúa (12.199), Sergio Miguel Fuentes Chávez (11.554) and Juan José Méndez Toc (12.020). Further, it compensated the family members of the victims in two cases in which reports had already been published: Samuel de la Cruz Gómez (case 10.606) and Francisco Guarcas Cipriano (11.275).
11. On March 2, 2001, the State of Guatemala and the Inter-American Press Associations signed the bases for a friendly settlement agreement concerning the case of journalist Irma Flaquer (11.766).
12. The Commission considers that the friendly settlement mechanism offers an important tool that the petitioners and State may take advantage of to seek the resolution of pending cases, and strenuously encourages the parties in their efforts. It is especially noteworthy and encouraging that the State has recognized its responsibility in the cases in reference. Equally, the State committed itself to ensure that these friendly settlement processes would include adequate compensation and/or assistance to the victim or the family members, to “follow-up on and promote the investigation of the facts denounced, [and ] prosecute civilly, criminally and administratively those persons who in compliance with state functions or by using state power are presumed to have participated in the alleged violation….” The Commission values the important step taken by the Government of President Alfonso Portillo to recognize responsibility for the human rights violations in the cases indicated and the commitment to undertake to initiate friendly settlements to do justice through the search for truth, the punishment of those responsible and the compensation of the victims or their families. This positive approach to the case system represents an advance with respect to the State’s role in the regional human rights system, and as the Commission expressed in its press communiqué 2/00, “this attitude of the new Government provides a hemispheric example in this respect.”
13. As a general matter, because the violation of a protected individual right generates international responsibility, and because that responsibility continues until it has been discharged through the necessary measures of accountability and reparation, the Commission shall take the measures necessary to provide the required follow-up on friendly settlement agreements, and shall continue to monitor so that full effect is given to its recommendations in relation to past cases of violations. Equally, as will be addressed further below, the Commission considers that full compliance with the recommendations of the Commission for Historical Clarification is one essential requisite for discharging the international responsibility incurred in relation to the violations of the conflict.
C. Considerations Relative to the Present Report
14. The approval and publication of the present report has been carried out in the context of the complex process of implementation of the peace accords, a process which must be accompanied by redoubled efforts to strengthen the administration of justice, among other essential aspects, toward the achievement of social justice through the validity of the constitutional rule of law and application thereof. This report has the objective of assisting the Government of Guatemala in its treatment of the pending challenges through the presentation of conclusions and recommendations whose end is the improvement of the State’s compliance with its international obligations in the sphere of human rights.
15. In its observations to the draft report, the State, for its part, valued the concern of the Commission with respect to the situation of human rights on the country, and reiterated:
its commitment to continue advancing in the full efficacy of those rights, utilizing for this purpose all the recourses and capacities of national institutions, equally with the will of the State to attend to the recommendations issued by international organs of protection with respect to which Guatemala is Party.
In this same sense, the State indicated in its observations that:
it considers that the [present] Report is timely, given that it permits us to have a vision of the situation of human rights at the close of the millennium through which we are able to contrast the advances toward the future and the great challenges that we Guatemalans have to confront to overcome the deficiencies in this sphere that we still suffer.
16. The Commission values the constructive attitude reflected by the State in its response to the draft report, and hopes to continue counting on the positive collaboration of both the state and non-state sectors in the process of following up on the conclusions and recommendations set forth. In this respect, the Commission encourages the actors of the state sector and civil society to intensify their efforts toward the full implementation of the peace accords as the framework for the improvement of the human rights situation. Finally, the Commission is always available, within the framework of its competence and the objectives and purpose of the American Convention, to contribute to the consolidation of efforts toward the achievement of peace and harmony among the Guatemalan people.
Notes Ch. II______________________
 See chapter III, infra, at A.