Public Declaration of the Director of MINUGUA

December 1996

Dear Friends,

Enclosed is a recent statement by MINUGUA, the UN verification team in Guatemala, concerning the amnesty issue in the final peace accords. There has been much confusion as to the precise dimensions of this amnesty, and I hope that this declaration will prove helpful in properly assessing the accords.

There has been concern that a blanket amnesty for all army atrocities has in fact been granted. This is simply not the case, as is made clear by the MINUGUA statement. In the Law of National Reconciliation, passed pursuant to the accords, the army is given amnesty for certain war-related crimes, but as explained by MINUGUA, this amnesty does not cover genocide, torture, or forced disappearances. Nor does it cover other categories of crimes set forth in the MINUGUA statement. Although extrajudicial execution is not specifically listed, the amnesty does not, for example, cover crimes which did not objectively or reasonably have to do with any valid war efforts. Dragging 177 women and children from Rio Negro up a remote hillside and massacring them certainly has no reasonable or objective relation to any real combat activities. Similarly, the amnesty does not cover the abuse of a detained person or prisoner. A person dragged from his or her home and shot to death would fall under this last prohibition. Once subdued and taken away by force, he or she would be a detained person or a prisoner. In most cases, he or she would also be a forcibly disappeared person. Thus the extrajudicial executions outside of combat are, in fact, covered in various ways.

In short, the Law is poorly written and on at least some issues, there will be problems of interpretations as a result. More seriously, if the courts remain under total military control as they now are, the amnesty principles will not be properly applied. As we have already seen, the commitments made in the Global Human Rights Accord of 1994 have been grossly violated by the army to date. Since October 1996, two indigenous rights leaders from CONIC have been murdered, as have three people linked with the Defensoria Maya, a leading journalist, and a union leader. Meanwhile, the prosecutor in the case of Jorge Carpio Nicolle has fled the country in fear of his life. Clearly, the key danger of the accords lies with the lack of compliance and enforcement.

There has also been much confusion as to whether or not such amnesties have been granted in other countries under similar circumstances. The answer, unfortunately, is yes. In Argentina some trials of military leaders occurred, but when the time for sentencing arrived, a coup became imminent, and the President issued a blanket pardon. In El Salvador there was also an amnesty. Fortunately, in Guatemala, there remains a small and imperfect space for justice. Much will depend on the international community.

Jennifer Harbury

Public Declaration of the Directory of MINUGUA

1. The Mission has followed with attention the legislative process that culminated on December 18 in the approval of the law of National Reconciliation and has initiated a careful analysis of its content which undoubtedly will have repercussions on the verification of the Comprehensive Human Rights Accord. A first examination of the legislation approved permits the Mission to reach the following preliminary conclusion.

1.1. That the total extinction of criminal responsibility in crimes that affect the rights of persons does not benefit [apply to] common crimes connected with political crimes committed by the URNG when any of the following circumstances is fulfilled: a) that the crimes have not been committed "in the armed conflict"; b) that they do not correspond to crimes tipified in the Penal Code expressly enumerated in artle 4 of the law; c) that do not have a direct, objective, intentional, and causal relation with the commission of political crimes; d) that although such a relation exists, it can be demonstrated that the crimes were motivated by a personal objective; e) or, if if elements appear to suggest a relation between both crimes, the inexistence of that relation is demonstrated; or f) if the crimes are genocide, torture, or forced disappearance.

1.2. That the total extinction of criminal responsibility in crimes that affect the rights of persons does not benefit [apply to] crimes committed by agents of the state or any other force established by the law when at least one of the following circumstances has been fulfilled: a) that the crimes have not been committed "in the armed conflict"; b) that they have not been perpetrated with the objective of preventing, impeding, persuing, or repressing political or related common crimes tipified in the Penal Code and in the Law of Arms and Municion, expressly enumerated in articles 2 and 4 of the Law; c) that there is not a rational and objective relation among the goals indicated and the acts committed; d) that the crimes have been committed for a personal motive; e) that, although elements appear to suggest that relationship or that there was no personal motive, this is shown not to be the case; f) that the crimes are genocide, torture, or forced disappearance; g) that the crimes are the consequence of undue use of methods or arms against a person who is detained or held prisoner (article 21 of the Constitution).

1.3 That the expression "in the armed conflict" is sufficiently clear to exclude from benefit human rights violations that have occurred outside the strict framework of the internal armed conflict and that, accordingly, constitute juridically unjustifiable excesses.

2. Taking into account the considerations mentioned above, the Mission believes that the judicial authorities now have a serious responsibility not to apply the extinction of criminal responsibility to "those crimes that are without a statute of limitations or that do not admit the extinction of criminal responsibility according to domestic law or the international treaties signed by Guatemala."

3. The Mission, in fulfilling its current mandate, will rigorously verify due process in all cases in which the benefit established by the Law of National Reconciliation is invoked.

4. In case MINUGUA is charged with verifying the Accord on the Basis for the Incorporation of the URNG into Legality, the Mission also will verify those highly positive aspects that refer to the right to truth and compensation for the victims of the acts covered by the Law of National Reconciliation.

5. MINUGUA fully shares the United Nations Moderator's affirmation on the occasion of the signing of the December 12 Accord, in which he recognized how necessary and difficult it is for a society emerging from a prolonged internal armed conflict to find an acceptable balance between the exigencies of peace, justice, truth, and national reconciliation. To find an adequate solution to this complex requirement that is compatible with international obligations is exclusively the domain of the people of Guatemala, through their institutions, in the legislative sphere as well as in the judicial arena, and of the diverse expressions of civil society.