GUATEMALA

CERD A/39/18 (1984)

468. The initial report of Guatemala (CERD/C/111/Add.2) was considered by the Committee together with the introductory statement made by the representative of the reporting State. He referred in particular to the national election of 1984 and stated that voting in Guatemala was compulsory for literate and optional for illiterate citizens and that the Supreme Electoral Court, which was the fourth power in the State, had been set up by the military Government to remove the electoral process form the influence of the Executive, certain groups of which had monopolized power over the past 12 years. Moreover, in addition to drafting the new Constitution of the Republic, the Constituent National Assembly would have to draft the Habeas Corpus Act and the Electoral Act under which Guatemala would elect, in 1985, the next constitutional President and the Legislative National Assembly which would promulgate laws in keeping with the spirit of the Convention.

469. Some members of the Committee welcomed the fact that the Government of Guatemala had acceded to the Convention. Nevertheless, despite the additional information the representative had provided and in the light of a complicated situation in that country under the existing state of emergency and against the background of the resolutions of United Nations organs, it was difficult for the Committee to form a clear idea of how far the Government had actually proceeded in starting to implement the Convention. Moreover, it was pointed out that, while it might be true that there was no de jure racial discrimination in Guatemala, it could exist on a de facto basis. In this connection, the Committee requested information on the place occupied by the convention in the legal system of Guatemala, on the legal measures that had been taken to prohibit racial discrimination and to punish offenders, and, in particular, on whether the Government Statute, which referred to human rights as the fundamental basis of the internal organization of the nation, had replaced the guarantees and individual rights provided for in the suspended Constitution.

470. The Committee also wished to know whether Guatemala's obligations under article 2 were effectively applied in relation to the indigenous populations, for instance, whether the Government was taking effective measures to review its policies and law with special reference to the indigenous populations and other vulnerable sectors of society; how far the indigenous populations enjoyed the right to freedom of expression and the use of their own languages; whether the right to freedom of religion, thought and conscience and the right to freedom of assembly and association were guaranteed for indigenous groups; whether there was any bilingual system of education which would help the indigenous populations to preserve their language and develop their culture; whether literacy in Quiché was taught in the same way a literacy in Spanish or whether persons knowing only Quiché were considered fully literate; and whether the level of services in housing was the same for indigenous groups as for the remainder of the population. Concerning the implementation of article 2, paragraph 2, of the Convention, information was requested on the social and economic plans to improve the status of the indigenous populations and preserve their cultural identity, customary laws, traditions, arts and crafts. More information was requested on the rights of women, who were likely to suffer more form social oppression, and whether there was legislation to ensure the rights of workers and the status of peasant farmers. The Committee also requested information on the demographic breakdown of the different indigenous groups.

471. With respect to the implementation of article 3, members of the Committee asked what position the Government of Guatemala had adopted with regard to South Africa and whether it maintained diplomatic, political, cultural or commercial relations with that country.

472. In connection with the implementation of article 4, it was pointed out that the report merely stated that acts of racial discrimination were prohibited, without any reference to penalties. Members asked about the relevant legislation providing penalties for incitement to racial discrimination and related offences, the redress afforded to persons against whom such offences were committed and the restraints on public authorities and institutions regarding incitement to racial discrimination.

473. As far as the implementation of article 5 was concerned, the Committee requested specific information as to how the Government of Guatemala proposed to comply with its obligations under article 5 (d), which was of especial importance in cases where the national constitution had been suspended; whether subparagraph (d) (i) concerning freedom of movement was still valid; what action had been taken at the local level against officials who, even in a state of emergency violated human rights and inflicted bodily harm. In this connection, reference was made to Commission on Human Rights resolution 1984/53, paragraph 2 and 7. Additional information on social and economic rights, including respect for the right to communal ownership of land, was also requested.

474. In relation to article 6, the Committee noted that the report did not make clear what legal redress was available to a person who thought that his human rights were being infringed in any way. It was also not clear whether there were provisions in the penal procedure to punish Government officials who contravened legislative provisions on the implementation of the Convention and whether there were any other recourse procedures available if acts of racial discrimination had been committed.

475. Concerning the implementation of article 7, the Committee wished to obtain additional information, in particular, on what effective measures had been taken to combat the prejudices which inevitably existed where there were indigenous populations, how the subject of human rights was presented and taught in schools and other educational establishments, and what steps Guatemala had taken to promote international understanding.

476. Replying to questions raised by members of the Committee, the representative of Guatemala explained that the population Guatemala was composed largely of Indians and Mestizos in roughly equal proportions and that the Government had not spared any effort to preserve the cultural identity and languages of those minorities. He also stated that, without access to the real facts and as a result of a subtle campaign directed against Guatemala, the world was presented with a distorted picture of developments in his country. There was nothing in law, in the administration of justice or in administrative practice which would qualify as racial discrimination. All Guatemalans without distinction had the effective enjoyment of all human rights and fundamental freedoms. Besides Indians and Mestizos, there were also people of African and Asian origin living in the country, but no complaint of racial discrimination had ever been received by the Government. Allegations of racial discrimination had been made by subversive elements to serve their own political ends and to overthrow the Government and the existing political régime of the country.

477. Turning to the question of freedom of religion, he said that all the inhabitants of Guatemala, whether Mestizo, Indian or of other ethnic origin, had the right to practice the religion of their choice.

478. As to freedom of movement, he said that every citizen of Guatemala was free to leave the country and to return, whenever he so desired, without having to obtain an entry or exit visa on his passport. The only exceptions were specifically laid down by the law, for example persons who had been judicially deprived of their civil rights.

479. Referring to the compulsory resettlement of indigenous groups he stated that the villages of the indigenous populations consisted of houses widely scattered in the mountains and that isolation made it easy for subversive elements to seize control of the villages. The Government had had no option but to resettle them in new areas. However, those actions had been represented abroad as a forced movement of the population.

480. As far as the system of land tenure was concerned, the representative explained that the disadvantage of the existing system of land tenure was that it led to the setting up of farms with excessively small holdings, since the father's land was divided among all the children and the indigenous population had a much higher fertility rate than those of mixed blood. The Government had therefore introduced an agrarian reform programme some 30 years previously. Very large areas of land had thus been distributed and substantial areas had been granted as co-operative holdings, and the original land titles issued by the Spaniards had been respected. No one could be dispossessed without proper compensation.

481. With regard to the indigenous population's right to education, he said that the Government had begun a bilingual education programme, but since there were over 20 dialects in the country a substantial investment was needed and the Government could ill afford it in view of the requirements in other fields, such as health and social services. The national language of Guatemala was Spanish and the expectation was that it should be a unifying force for the inhabitants. The illiteracy rate was high despite the efforts being made to reduce it and it was higher among adults than among children. Primary education was compulsory, but for various reasons school attendance was not 100 per cent.

CERD A/50/18 (1995)

279. The second, third, fourth, fifth and sixth periodic reports of Guatemala, combined in a single document (CERD/C/256/Add.1), were considered at its 1092^nd and 1093^rd meetings, on 14 March 1995 (see CERD/C/SR.1092 and 1093).

280. The reports were introduced by the representative of the State party who affirmed the importance accorded to the work of the Committee by his Government and the commitment of Guatemala to respect and promote the human rights of all its people. Introductory comments were also made emphasizing key moments in the development of the country and noting ongoing concerns with regard to Belize.

281. It was explained that the population of Guatemala is primarily made up of indigenous peoples and that some 23 languages and dialects are spoken. He emphasized that State policy stresses respect for the racial and cultural diversity of the people and described the functions of the newly established Fondo Nacional Indigena. Certain structural weaknesses restrict the Government's ability to adequately promote the well-being of its people in areas such as health and education. Particular problems are imposed by a history of political instability and ongoing armed conflict. Strenuous efforts are now being made to conclude peace settlements and among the accords which have been agreed are those according a mediation role to the Secretary-General of the United Nations and the establishment of the United Nations mission in Guatemala.

282. The representative stated that the Government's attempts to introduce economic reform have been hindered by the strategies of international financial institutions.

283. Members of the Committee welcomed measures taken with the aim of achieving a durable peace and ensuring the democratic process. They also noted that, in accordance with the Constitution, all human rights instruments ratified or acceded to by Guatemala, including the International Convention on the Elimination of All Forms of Racial Discrimination, have been given precedence over national legislation and can be directly invoked before the courts.

284. Concerning article 2 of the Convention members asked a number of questions concerning the extent to which the Government in its laws and policies actively combated racial discrimination, especially as directed against the majority indigenous peoples. They noted that central to such a policy would be efforts to alleviate the economic disadvantages of those people. Questions were also asked as to the effect of the armed combat on the struggle against racial discrimination. Some members of the Committee asked about the generalized use of forcible recruitment of indigenous persons for military service, and about serious violations against the indigenous population by the army, which included summary executions and other cruel and degrading treatment. In addition, some members asked about the situation of indigenous persons who were refugees who had returned, about communities which resisted and about "lost communities". Members inquired as to the role of the army in police work and the activities of civilian self-defense patrols (PAC). Members asked about the status of the new Penal Code and the extent of independence enjoyed by magistrates.

285. Members asked whether the Convention was at present citable in national courts or still awaited appropriate legislation. They also sought clarification of article 45 of the Constitution concerning criminal liability for human rights violations. Queries were expressed concerning the effectiveness of criminal legislation in combating racial discrimination.

286. Members indicated that Guatemalan law failed to comply with the terms of article 4 of the Convention through a failure to specifically address issues of racial discrimination.

287. With reference to article 5 members inquired as to the socio-economic status of indigenous peoples vis-à-vis other members of society. In the light of reports received by members it was also asked whether the rights of indigenous people to own property were adequately protected. Concerns were expressed about the difficulties experienced by indigenous peoples in obtaining justice before the courts and in fully participating in the public life of the country. Further information was requested concerning membership by indigenous peoples in development councils. Questions were also put concerning the enjoyment by indigenous peoples and certain ethnic groups of freedom of religion, access to education, freedom of expression in the electronic media, and the right to form trade unions.

288. With regard to article 6 of the Convention members asked for confirmation that the army had compensated farmers for damage done to crops during military activity. Information was also requested as to the number of specific cases of racial discrimination which had been brought before the courts and as to the effectiveness in such cases of remedies such as habeas corpus.

289. Pursuant to the terms of article 7 members inquired about the extent of human rights training provided for police and security officials. Details were also requested on the efforts made by the Government to promote widespread knowledge of the Convention.

290. Members suggested that Guatemala consider making the declaration under article 14 of the Convention and consider accepting the amendment to article 18, paragraph 6, of the Convention concerning the financing of the expenses of the members of the Committee.

291. In replying to questions of members, the representative of the State party acknowledged the inadequacies of the report and indicated that his Government would submit an extended report in time for consideration at the forty-seventh session of the Committee. It would also address outstanding matters in its next periodic report due in February 1996. To facilitate the preparation of these reports the representative extended an invitation on behalf of the Government for the country rapporteur of the Committee to visit Guatemala.

292. The representative clarified a number of ambiguities in the report and stated that information of an ethnic nature might be sought in future national censuses in order to assist the State in complying with its reporting obligations.

293. It was noted that a number of positive developments in the country had not been reflected in the report, such as laws to give effect to article 70 of the Constitution and the establishment of the Guatemalan Indigenous Development Fund.

294. The representative acknowledged that there had been problems with PACs but indicated that great efforts were being made to have them disarmed and transformed into peace and development committees. Improvements in the police force were noted as were presidential initiatives to turn the army into a volunteer force with adult soldiers only.

295. Governmental policies to facilitate the return of refugees and displaced people were described and the representative undertook to provide further information on such matters as the extent of compensation given to farmers whose crops had been destroyed by the army during military activity.

296. Reforms in the judicial system were noted and the representative indicated the priority given by the Government to ensuring the independence of the judiciary and the personal safety of judges and magistrates.

297. The representative also drew attention to policies for the alleviation of poverty and the provision of essential social services (housing, medical care, education, etc.) and indicated the high priority accorded these issues by the Government. He noted that the procedure for ratification of ILO Convention No. 169 was under way in the Guatemalan Congress.

Concluding observations

298. At its 1098^th meeting held on 17 March 1995, the Committee adopted the following concluding observations:

(a) Introduction

299. The Committee welcomes the resumption of the dialogue with the Government of Guatemala and expresses its appreciation to the State party for its detailed report and for having submitted a core document (HRI/CORE/1/Add.47). It notes with satisfaction that the oral information provided by the delegation in introducing the report and replying to questions raised during the dialogue enabled the Committee to obtain a clearer picture of the situation in the State party. Nevertheless, the Committee regrets that the report does not provide information on the implementation of the Convention, as requested in article 9, paragraph 1, of the Convention. In this connection, it takes note of the statement by the delegation indicating a willingness to pursue the dialogue with the Committee in the near future and provide it with further information on measures taken to implement the Convention.

(b) Positive factors

300. Measures taken with the aim of achieving a durable peace and ensuring the democratic process started in 1985 are welcomed. It is further noted that, in accordance with the Constitution, all human rights instruments ratified or acceded to by Guatemala, including the International Convention on the Elimination of All Forms of Racial Discrimination, have been given precedence over national legislation and can be invoked directly before the courts.

301. Steps taken by the military authorities to bring military personnel involved in crimes before the courts, and efforts to reduce the number of and review the need for PACs are acknowledged.

302. The creation of 3,000 teaching posts in 1994, including 800 in bilingual education, is also a welcome development.

(c) Factors and difficulties impeding the application of the Convention

303. It is noted with deep preoccupation that because of the armed conflict there still exists in Guatemalan society a significant degree of militarization which contributes consequentially to the phenomenon whereby members of the armed forces have committed excesses against the civilian population in general and members of indigenous communities in particular.

(d) Principal subjects of concern

304. The statement in paragraph 87 of the report that no form of racial discrimination is practised against persons, groups of persons or institutions is not accepted. De facto racial discrimination persists in Guatemala against the indigenous communities representing the majority of the Guatemalan people. It is noted with concern that no legal protection is offered in practice against such discrimination.

305. Profound concern is expressed regarding widespread discrimination affecting the indigenous communities and excluding them from the enjoyment of their civil, political, economic, social and cultural rights. It is regretted that adequate measures have not been taken to implement the provisions of the Convention. It is particularly regretted that members of the indigenous communities, contrary to article 5 (c) of the Convention, are not in any position to participate equally in the conduct of public affairs at all levels.

306. It is regretted that national legislation does not meet the requirements of article 4 of the Convention calling for the adoption of specific penal legislation.

307. Concern is expressed at the numerous excesses by elements of the military and the PACs against indigenous peoples, including summary executions and other cruel, inhuman or degrading treatment, threats and forcible recruitment into the armed forces.

308. The failure to investigate these crimes and to prosecute the perpetrators is particularly deplored.

309. The lack of awareness of members of indigenous communities about recourse procedures, the shortage of practical facilities for them to use their own language in court procedures and the weaknesses of the judicial system are also regretted as is the resulting relative impunity for perpetrators of such violations.

310. Concern is also expressed that conditions of extreme poverty and social exclusion are endured, in particular by the indigenous Maya Quiche population. Such conditions adversely affect the enjoyment of the rights guaranteed under article 5 of the Convention such as the right to own property, the right to work, the right to form and join trade unions, and the right to housing, public health and education.

311. Particular concern is expressed that the rate of illiteracy is especially high among indigenous communities.

(e) Suggestions and recommendations

312. The Committee requests that the next report of the State party contain detailed information on the implementation of the provisions of the Convention.

313. The Committee also recommends that practical measures be taken by the Government to implement the Convention, in particular in respect of the members of indigenous communities. Every effort should be taken to ensure that the members of indigenous communities can effectively enjoy their economic, social, cultural, civil and political rights in accordance with article 5 of the Convention.

314. The Committee emphasizes that the State party must comply with its obligations under article 4 of the Convention and necessary legislative measures should be taken in order to give effect to the provisions of that article.

315. The Committee recommends that more information be provided in the next periodic report on the implementation of the provisions of article 5 of the Convention. The State party is requested to provide detailed information on measures taken to ensure the political, social and economic integration of the indigenous communities, as well as their physical existence and cultural heritage; efforts to reduce the militarization of the society and the impact of the PACs; on cases of complaints of racial discrimination brought before the courts, penalties imposed on perpetrators of such acts of racial discrimination and on remedies and reparation made available to victims of racial discrimination.

316. The Committee calls upon the Government to review and improve the training of law enforcement officials in the light of the Committee's General Recommendation XIII.

317. The Committee recommends that the State party consider ratifying ILO Convention No. 169 concerning Indigenous and Tribal Peoples in Independent Countries.

318. The Committee suggests that the State party consider making the declaration under article 14, paragraph 1, of the Convention, recognizing the competence of the Committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation of any of the rights set forth in the Convention.

319. The Committee suggests that the State party ensure the dissemination of its periodic report, the summary records of the discussion and the concluding observations adopted thereon.

(f) Other measures

320. The Committee takes note with satisfaction of the proposal of the State party to submit additional information at the forty-seventh session in August 1995, and also of the decision to submit a new periodic report in February 1996, and expects that these proposals will be fulfilled. The Committee further takes note with appreciation of the official invitation to send one of its members to Guatemala with a view to assisting the State party in its implementation of the Convention.

CERD A/52/18 (1997)

63. The Committee considered the seventh periodic report of Guatemala (CERD/C/292/Add.1) at its 1190^th and 1191^st meetings (CERD/C/SR.1190 and 1191), held on 5 and 6 March 1997. At its 1210 meeting, held on 19 March 1997, it adopted the following concluding observations.

A. Introduction

64. The Committee welcomes the opportunity to engage in a frank and fruitful dialogue with the Government of Guatemala. The Committee expresses its appreciation of the continuous dialogue with Guatemala during this time of important changes and developments in the State party.

65. The Committee expresses its appreciation for the important information provided in the report and by the delegation in the oral presentation. That information, including recent developments in the State party, enabled the Committee to obtain a better and more up-to-date picture of the situation. Nevertheless, the Committee regrets that the report did not contain sufficient information on the actual practice in the State party with respect to the implementation of the Convention and did not take sufficient account of the concluding observations of the Committee with respect to the previous report. 8 /

66. The Committee noted that the State party has not made the declaration provided for in article 14 of the Convention, and some of its members requested that the possibility of making such declaration be considered.

B. Factors or difficulties impeding the implementation of the Convention

67. It is recognized that much needs to be done to overcome the effects of the long-lasting conflict in the State party. Efforts towards the full enforcement of the principles and provisions enshrined in the Convention have been hampered by the difficult circumstances in the country after decades of unrest and civil war. It is acknowledged that the changes need to go beyond disarmament and that attitudes and values related to the culture of violence have to be changed in order to achieve peace. It is noted that the exercise of racial discrimination, especially against indigenous populations, is still prevalent in some parts of the society.

C. Positive aspects

68. It is noted with satisfaction that despite severe economic and social difficulties, considerable efforts are being made to implement the provisions of the Convention.

________________

            8/ [Official Records of the General Assembly], Fiftieth Session, Supplement No. 18 (A/50/18), paras. 298-319.

69. It is appreciated, in particular, that there have been important legal developments recently. A major achievement has been the Agreement on Identity and Rights of Indigenous Peoples and the Agreement for the Resettlement of Uprooted Populations, which were signed in the process of