11 May 2018
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In my capacity as Special Rapporteur on the rights of indigenous peoples, I have visited Guatemala from 1 to 10 May 2018. I thank the Government for having invited me and for its cooperation during the visit.
In the course of my visit, I have met with high-level representatives from various ministries, the Congress of the Republic, the Supreme Court of Justice, the Constitutional Court, the Human Rights Ombudsman, the Presidential Commission against Discrimination and Racism (CODISRA) and the Presidential Commission Coordinating the Policy of the Executive on Human Rights (COPREDEH), among others. I also met with indigenous authorities, indigenous women, civil society organisations, representatives of the business sector, the United Nations System and the international community.
I have been able to visit indigenous communities, where I held meetings attended by some 10,000 people from the Mayan peoples of Mam, Sipakapense, Chuj, Akateko, Q'anjob'al, Ixil, Kaqchikel, Tz'utujil, K'iche ', Ch' orti, Q'eqchi ', Poqomchi', Achi and multilingual communities of Ixcán and Petén, in the departments of San Marcos, Chiquimula, Alta Verapaz and Santa Rosa, as well as representatives of the Xinka and Garífuna peoples.
During my visit, I analysed the progress made in implementing the recommendations made by my predecessors during their official visits to the country in 2002 and 2010. I have also considered the multitude of recommendations issued by the treaty bodies and other international and regional human rights mechanisms.
At the international level, Guatemala has played an important role in promoting the rights of indigenous peoples, and played a leading role in the adoption of the United Nations Declaration on the Rights of Indigenous Peoples in 2007. However, serious obstacles remain in relation to the adequate protection of the rights of indigenous peoples at the national level.
During the past week, I received an enormous amount of oral and written information that I will review in the coming months for the preparation of my final report that I will present to the Human Rights Council in September. In anticipation of this report, I would like to take the opportunity to share some preliminary observations.
In my conversations with all stakeholders, I have been repeatedly informed of the existence of structural problems that prevent existing actions in favor of indigenous peoples from actually being effective. It is necessary for Guatemala to identify, confront and begin to work on the resolution of these structural problems as an urgent priority.
Among these structural problems, I would like to refer to the lack of guarantees for the rights of indigenous peoples to self-determination, the recognition of their own systems of self-government, their rights to lands, territories and natural resources, the exercise of indigenous jurisdiction, as well as access to basic health, education and food that are culturally and linguistically appropriate. In general, I have observed persistent racism, discrimination and exclusion of indigenous peoples at all levels, resulting in a situation of de facto racial segregation, within a context of weak State institutions, corruption and impunity. This situation has been repeatedly identified by other international and regional human rights mechanisms.
The implementation rate of the 1996 Peace Accords regarding the Agreement on the Identity and Rights of Indigenous Peoples is only 19%. Failure to comply with these commitments has undermined progress in adopting measures in many areas, including land reform, recognition of indigenous authorities and justice, political participation and bilingual intercultural education.
Congress has failed to adopt more than a dozen legislative initiatives related to these commitments. Although some institutions related to the rights of indigenous peoples were established, such as CODISRA and the Office of the Ombudsperson for Indigenous Women (DEMI), these institutions and the approximately 30 indigenous units within different State agencies lack the necessary budget or personnel as well as political influence and adequate coordination. The full implementation of the Peace Accords must be a priority on the State's agenda to overcome existing problems that impede the enjoyment of the rights of indigenous peoples.
Lands and territories
I have received allegations of serious violations of the rights of indigenous peoples to their lands, territories and natural resources. The adequate protection of these rights continues to be a fundamental pending issue that was already identified as a crucial issue in the 1996 Peace Accords.
Guatemala lacks a legal framework, or adequate mechanisms for the protection of the collective rights of indigenous peoples to lands, territories and natural resources. This puts them in a situation of total lack of protection against other interests. Efforts by indigenous communities to obtain legal protection of their territorial rights have not progressed, with few exceptions, in the judicial system.
In this context, human rights violations are exacerbated by the granting of licenses for the extraction of natural resources, the construction of infrastructure and other projects on the traditional lands of indigenous peoples or close to these. The lack of coherence of several sectoral laws with the obligations of the State in relation to the rights of indigenous peoples is an added problem that generates legal uncertainty. It is necessary to harmonise legislation with international human rights standards. In this regard, it should be noted that the Constitution of Guatemala establishes the pre-eminence of international human rights obligations.
I have heard numerous testimonies about the devastating effects of certain projects on affected indigenous peoples, which have resulted in divisions in the communities and serious negative impacts on their systems of government, livelihoods, health, and rights to food and water. Allegations were made, in particular, regarding hydroelectric plants, monoculture plantations, and extraction operations of mining and infrastructure projects with impacts on the lands and resources of indigenous communities and which are carried out without adequate consultation or consent.
Indigenous peoples are not against development but they reject the "development" projects that have been imposed on them. I would like to emphasise that, according to Article 32 of the United Nations Declaration on the Rights of Indigenous Peoples, indigenous peoples have the right to set their own priorities for development.
The seriousness of this situation is exemplified by the forced evictions of indigenous communities from lands claimed by other parties or from protected areas, which, according to the information received, are carried out without adequately considering or investigating the potential property rights of the peoples to the lands from which they are evicted.
Some of these communities are in a situation of servitude (mozo colonato). In addition, resettlement plans for the communities are not prepared before they are eviction, which causes humanitarian emergencies and additional violations of their human rights. According to the information received, several recently evicted communities were also displaced years ago during the internal armed conflict, and are forced to experience the same pain as in the past, which is still alive in their collective memory.
I met with indigenous women evicted from the community of La Cumbre in Alta Verapaz and the community of Chabilchoch in Izabal, who described to me the excessive use of force used during the evictions and the devastation caused in their communities, including the impacts on their children. The precarious humanitarian conditions of these and other recently evicted communities, including the community of Laguna Larga in Petén, have led to the granting of precautionary measures by the Inter-American Commission on Human Rights. No government agency seems to have assumed responsibility for providing urgent humanitarian assistance to these communities.
Criminalisation and defense of human rights
In the regions I visited, the incidence of the abuse of criminal proceedings against indigenous people defending their lands and resources was repeatedly raised as a key concern. In most cases, the underlying cause is the lack of security in the land tenure of indigenous communities.
In my travels around the country I have observed the repetition of similar patterns in relation to these charges, which often include accusations such as aggravated usurpation, conspiracy, kidnapping, theft, coercion, instigation of crime and even murder. I am concerned that the crime of aggravated usurpation is considered a crime in flagrante, which implies restrictions on the right to defense guaranteed in international human rights standards.
The initiation of criminal proceedings against indigenous authorities and leaders who defend their rights to their lands are often preceded by smear campaigns, including on social networks, which label them as violent criminals seeking conflict, campaigns that are carried out with the aim of discredit the legitimate exercise of their rights.
In many of these cases, companies or large landowners participate as complainants against indigenous defenders and have a fundamental role in advancing the cases of criminalisation.
I received worrying allegations about collusion, at the local level, of prosecutors and judges with companies and landowners in these cases. I was informed of arrest warrants issued on the basis of weak evidence and uncorroborated witness testimonies. I am also concerned about the repeated suspension of hearings and the long periods of preventive detention in these cases.
During my mission, I visited indigenous representatives in prison on such charges. In Guatemala City I met with Abelino Chub Caal. Abelino Chub is a human rights defender from the department of Izabal, an area where large African palm and banana plantations have been established. Abelino has been in custody for 15 months, 320 km away from his family. I am concerned that two days ago the Higher Risk Court "A" decided to associate Abelino to the criminal process.
I also visited the imprisoned indigenous representatives in the prison of Cobán, Alta Verapaz, including Bernardo Caal Xol, who petitioned the Constitutional Court to issue an injunction in favour of the indigenous communities affected by the Oxec hydroelectric plant. He was arrested in January 2018 on charges of aggravated robbery and aggravated illegal detention. Prior to his capture, there were acts of intimidation and a campaign of defamation on social networks against him.
Both Abelino and Bernardo told me that they fear for their safety. I urge the government to take measures to ensure the protection of the physical integrity of these defenders deprived of liberty.
I would like to reiterate Guatemala's obligations under ILO Convention 169, which establishes in Article 10 that preference should be given to sanctions other than imprisonment when criminal sanctions are imposed on members of indigenous peoples.
The situation of criminalisation has resulted in an increase in tensions and a lack of confidence on the part of indigenous peoples in the justice system. I received information about the repercussions of criminalisation on communities and on indigenous families.
I was also informed of several murders of indigenous people who opposed projects on their traditional lands. I received information about the intimidation and threats suffered by community leaders on a regular basis in the context of acts in defense of their lands, territories and natural resources. The information received about the murder yesterday of a defender of the farmers’ organisation CODECA and the murder today of an advocate of the Choctún community in Alta Verapaz is alarming.
I consider it positive that the State is making progress in the development of a Public Policy for the protection of human rights defenders and I urge it to ensure that protection measures are culturally appropriate, including measures for the collective protection of at-risk indigenous communities.
I regret that in some meetings, government authorities made stigmatising comments about indigenous leaders, alleging their involvement in criminal activities. I would like to underline the right of indigenous peoples to peacefully defend their rights to lands, territories and natural resources and express their opposition to imposed projects.
A related problem is the criminalisation of community radios, which often involves raiding their stations and confiscating equipment. Indigenous community radio stations that broadcast in indigenous languages are a key means of accessing information for indigenous peoples, especially in rural areas. The adoption of reforms to the current telecommunications law is urgent to ensure the access of indigenous community radio stations to the radio frequencies authorised by the State.
Consultation and free, prior and informed consent
Despite of the gravity of the structural problems, the focus of attention in relation to indigenous peoples in Guatemala seems to revolve around the issue of consultation. I have held meetings with representatives of the Constitutional Court, the Congress of the Republic and the Executive in relation to this issue. I have been informed of various existing initiatives aimed at regulating the process of consultation with indigenous peoples. I am concerned that these initiatives seem to have been developed without participation, much less consultation with indigenous peoples since their inception, as required by international standards.
In a preliminary way, I would like to emphasise that the right to consultation of indigenous peoples should not be viewed as an isolated right. On the contrary, this right derives from the substantive rights of indigenous peoples, and is designed to safeguard those rights, in particular the rights of self-determination and associated rights over lands, territories and natural resources.
I would also like to emphasise that compliance with the obligations of ILO Convention 169 is not limited to the regulation of the right to consultation, but requires the application of the full range of rights affirmed in that instrument. Moreover, Convention 169 must be interpreted in accordance with other international obligations of Guatemala in relation to the rights of indigenous peoples, in particular the standards contained in the United Nations Declaration on the Rights of Indigenous Peoples and in the jurisprudence of the Inter-American Court of Human Rights. In my capacity as Special Rapporteur, I should ensure that any legal or administrative action regarding the rights to consultation and consent complies with these international standards.
I am concerned that the discussions on the consultation seem to focus only on procedural aspects, rather than guaranteeing the protection of the substantive rights of indigenous peoples, and that they are linked only to natural resource extraction projects, which could lead to consultation becoming a mechanism to limit rather than to protect the rights of indigenous peoples.
It is important to underline that, in accordance with international standards of indigenous peoples' rights, consultations must be in good faith, free, and prior to the initiative under consideration. In this sense, post-facto consultations, especially in the case of projects that are still in operation, do not comply with these international human rights standards.
It is necessary to build a consensus between the State and indigenous peoples on the substance and procedures of the consultation. Without this consensus, there is a risk that any action taken will result in increased mutual distrust and confrontation. I am fully aware that, in the general context I have described, it is difficult to build a climate of trust, as I observed in my conversations with different actors.
In my opinion, the Government of Guatemala should demonstrate effective progress in the protection and realisation of the rights of indigenous peoples in relation to their lands and territories, their freely determined development, the access to justice and the recognition of their authorities to be able to begin to build a new relationship with indigenous peoples.
Access to justice and indigenous justice
The indigenous peoples of Guatemala continue to face serious obstacles to access ordinary justice, particularly in relation to the standards applicable to indigenous peoples in this matter under international human rights law. I have heard repeated complaints about discrimination in the ordinary justice system and about the lack of adequate attention to the reports of violations of individual and collective human rights presented by the indigenous peoples. Despite this, I have found that indigenous peoples regularly resort to the system of ordinary justice for the protection of their rights.
I was informed of some positive developments that have been adopted in this area, such as the adoption of a public policy on access to justice for indigenous peoples in the Attorney General's Office and the creation of a Secretariat in charge of its implementation. I hope that the newly appointed Attorney General continues to support these important initiatives.
I would also like to underline the important responsibility of the High Courts to resolve the cases on the rights of the indigenous peoples presented before them. Some progress is observed in the jurisprudence of the Constitutional Court in relation to the protection of these rights, in relation to the subjects of consultation, territorial rights, indigenous jurisdiction and intercultural bilingual education, among others. However, concerns have been communicated to me that some of these rulings, such as the one issued last year in the Oxec case, have not been able to adequately resolve the problems that generated the case. I trust that the future ruling on the case of the San Rafael mine will adequately apply all the relevant international standards on the rights of indigenous peoples, as well as in all other pending cases in this matter.
Another important issue is the effective recognition of legal pluralism and indigenous jurisdiction, as well as its harmonisation with the ordinary justice system. I am convinced that this will have a positive impact on the governability of the country. I have been informed that in the areas in which indigenous justice is applied, the rates of violent crimes are the lowest in the country, as in the departments of San Marcos, Sololá, Totonicapán, Baja Verapaz and Quiche, where no homicides were registered in many municipalities in 2017. In this task, the strengthening of the Secretariat of Indigenous Peoples of the Judicial Branch is crucial.
Self-government and political participation
The government institutions of the indigenous peoples are not adequately recognised in Guatemalan legislation. Despite having been designed with the intention of improving development at the local level, the system of Community Development Councils (COCODES) has contributed to the weakening of the traditional structures of indigenous peoples and to the intrusion of local political interests sometimes alien to the real interest of the communities. I have also received allegations of alleged corruption. The State should adopt measures to recognise and adequately support the systems of self-government of indigenous peoples.
I would like to add that I have also been informed about the denial of the right to self-identification, particularly in the case of the Xinca people. I would like to emphasise the need for the government to support indigenous peoples' own processes of strengthening their cultures and identities.
I have also observed that the rights of indigenous peoples to participate in the political life of the country are affected by racism and structural discrimination and the absence of affirmative measures that help ensure democratic participation.
Poverty
I am concerned about the indicators that reflect the lack of improvements in the rights of indigenous peoples. In recent years, the national economy has continued to grow, but the levels of inequality have increased. The indigenous peoples of Guatemala continue to be the most disadvantaged in society.
Approximately 80% of the indigenous people live in poverty, while for the non-indigenous population the rate is 46%. About 40% of indigenous people live in extreme poverty. If radical measures are not adopted, this situation will make it impossible for Guatemala to achieve the commitments it made in the framework of the Sustainable Development Goals to "not leave anyone behind".
This situation is aggravated by systematic corruption and one of the lowest levels of tax collection in the world. It is reported that public spending directed at indigenous peoples is less than half that for the rest of the population.
Health
It is alarming that the majority of the population continues without access to primary health and that Guatemala has the second highest level of maternal mortality in Latin America. The role of indigenous midwives is essential to provide accessible and culturally appropriate maternal and child health services. I was able to meet with midwives who shared with me their experiences of racial discrimination in the health system. I consider the adoption of a National Policy for Indigenous Midwives to be positive and I urge the Government to ensure the necessary budget for its implementation - a task that is still pending.
I met with several indigenous persons with disabilities who told me about the multiple discrimination they face and the lack of appropriate policies and services, especially in rural areas. They stated that they feel invisible and unable of participating in society due to their marginalisation.
During my visit I was also told about the negative impacts on health and food security caused by the limitations in access to land for the cultivation of basic crops and by the diversion and contamination of rivers by mining, hydroelectric and monoculture projects.
Guatemala has the highest rate of chronic malnutrition in Latin America. Statistics indicate that 46.5% of all children in Guatemala under 5 years of age suffer from chronic malnutrition. Rates of chronic malnutrition almost double among indigenous children, for whom the rate is over 60%, while for non-indigenous children the rate is only around 34%. These are for me clear indicators that the State does not address structural problems, including exclusion and racism, which in turn contribute to chronic malnutrition.
During my visit to Camotán, I received information about the serious situation of child malnutrition, despite the existence of a sentence of the Constitutional Court to confront this situation in the region, and the unfortunate death of a girl last year that had measures of protection granted by the Court in their favour.
Indigenous women and girls
I held separate meetings with indigenous women in all the communities I visited. They shared with me information about the multiple forms of discrimination they suffer, despite the existence of national norms on domestic violence, sexual violence, trafficking, sexual exploitation and femicide, as well as the lack of respect for their textile weavings. I received information about abuses against women during evictions, and the special obligations that fall on them in this situation, such as the construction of temporary camps, the difficulties in caring for their children and the elderly in the inhumane conditions they suffer after evictions.
At the same time, I was happy to talk with several women who hold positions of authority in the indigenous communities, who also shared with me their problems and those of their communities. I was impressed by his strength and commitment.
The wives of criminalised men spoke about the difficulties of sending their children to school and feeding them. They also reported on several cases of rapes and murders of indigenous girls. There is a situation of impunity for the perpetrators of these crimes.
I would like to express my concern about the situation of indigenous girls who were victims of the fire in the institution ‘Safe Home of the Virgen de la Asunción’ last year and emphasise the need to implement measures of attention and reparation in favour of the surviving girls and the families of the girls who deceased.
Education
Although Article 76 of the Constitution establishes the right to bilingual education of indigenous peoples, this is far from being fulfilled. In July 2016, the Constitutional Court ruled that, within six months, the Ministry of Education had to develop and implement bilingual intercultural education curricula, but I have been informed that concrete measures have yet to be taken. I am seriously concerned over the delays in addressing this issue.
Access to education for indigenous children remains limited. Half of indigenous children do not go to school. Other documented problems include overcrowding, inferior quality of education, poor state of facilities and racism and discrimination.
In my visits to the indigenous communities I was repeatedly informed about fees to be paid at school, which forces indigenous children to drop out, and also about the lack of education in indigenous languages. The situation of indigenous girls is especially alarming, as they receive only 2 years of education on average compared to 6 years for non-indigenous girls.
I was also informed that the national curriculum does not include information on the impact of the armed conflict on indigenous peoples. I believe that it is essential that this be incorporated so that non-indigenous children understand the legacy of the conflict and its consequences.
Responsibility and reparations for crimes of the internal armed conflict
Before concluding, I would like to address the wounds of the internal armed conflict that, in my opinion, have not yet been healed. The conflict led to the forced displacement of more than one and a half million people, mostly indigenous peoples, and extrajudicial executions and forced disappearances of more than 200,000 people, of which 83% were estimated to have been Mayan.
Despite the fact that the UN Historical Clarification Commission concluded that State and paramilitary groups were responsible for around 93% of the violations, accountability for their actions has been very limited.
In February 2016, in the Sepur Zarco case, two ex-soldiers were sentenced for murder, rape and sexual slavery of Q'eq'chi women, whom I was able to meet with at the time and with whom I have been able to speak again during this visit. I hope that the pending reparation measures included in the ruling will be carried out swiftly.
In other key cases, especially in the Ixil Genocide case and the CREOMPAZ case, the procedures have been repeatedly delayed due to various tactics, such as the excessive use of injunctions (amparos). I was able to meet with victims of these and other cases of massacres and grave violations. They told me about their suffering and humiliation, aggravated by the State's lack of responsibility and reparation. In this regard, I believe that it is essential that the necessary funds be provided to the National Reparation Programme, established in 2003, so that it can fulfil its mandate and provide victims with integral reparation.
Conclusion
In conclusion, I would like to reiterate my gratitude to the Government of Guatemala for the invitation and full cooperation it gave me, and for allowing me to make my visit freely and independently. I would also like to express my gratitude to the Office of the United Nations High Commissioner for Human Rights in Guatemala and Geneva for their support to ensure the success of the visit.
Finally, I offer my deep gratitude to the indigenous peoples who have received me in their territories and to all those who travelled to share their experiences and concerns with me. I am inspired by your strength and determination to continue defending your rights and seeking justice.