CHAPTER XI: THE RIGHTS OF INDIGENOUS PEOPLES
1. The human rights of the indigenous individuals and peoples of Guatemala, who comprise approximately half of the total population, have been the subject of ongoing attention by the Commission. The Maya people, the biggest group in terms of numbers, include the following linguistic communities: Achi’, Akateco, Awakateco, Ch’orti’, Chuj, Itza, Ixil, Popti’, Q’anjob’al, Kaqchikel, K’iche’, Mam, Mopan, Poqomam, Pocomchi’, Q’eqchi’, Sakapulteko, Sipakapense, Tektiteko, Tz’utujil, and Uspanteco. The indigenous population is also composed of the few survivors of the old Xinca people, and the Garifuna people, who have indigenous and African roots and live in the areas near Guatemala's Atlantic Coast.
2. Because of the composition of its population, Guatemala is a multiethnic, multilingual, and multicultural State.
3. The population of Guatemala is largely rural. Sixty-five percent of the people live in rural areas; of this number 52 percent are indigenous. This majority is more accentuated in the departments that are far removed from the capital. Indigenous peoples comprise at least half of the urban population.
4. Historically, the indigenous peoples of Guatemala have been discriminated against for ethnic reasons, comprise a large percentage of the poor or persons living in abject poverty and the majority in the departments with the highest rates of social exclusion. The same situation exists in poor urban areas. However, whether they live in rural or urban areas, they maintain an intense level of activity and social organization, a rich culture, and are continuously adapting to situations imposed by the exigencies of historical change, while protecting and developing their cultural identity.
A. Legal Framework
5. Guatemalan legislation contains a series of specific and disparate provisions, at the levels of both the Constitution and laws, with respect to indigenous peoples. The legislative trend in this area in the past ten years has been the incorporation into the law of provisions recognizing and protecting indigenous peoples, such as those related to the protection of indigenous chidden, the promotion of bilingual, intercultural education, and the creation of institutions to protect and defend indigenous women, among others.
6. Guatemala's Constitution recognizes that the State is composed of different ethnic group and pledges to recognize, respect, and promote their way of life, customs, and traditions. Specifically, Articles 66-70 are made up of a section called "indigenous communities," the first of which states:
Protection of ethnic groups. Guatemala is made up of various ethnic groups, among them indigenous groups of Maya descent. The State recognizes, respects and encourages their ways of life, customs, traditions, social organization, use of indigenous dress by men and women alike, languages, and dialects.
Article 67 covers the protection of indigenous agricultural lands and cooperatives, and stipulates that "they shall enjoy special protection from the State, and, in this regard, assistance shall be provided in the form of credit and preferential technologies that guarantee all inhabitants a better quality of life." Article 68 states that "by means of special programs and appropriate legislation, the State shall provide state lands to the indigenous communities that need them for their development." In addition, Article 69 addresses the moving of workers and their protection, and Article 70 stipulates that "a law shall regulate matters pertaining to the topics" covered in that section.
7. In 1997, ILO Convention 169, pertaining to indigenous and tribal peoples in independent countries, took effect in Guatemala. This convention is the most relevant international human rights instrument dealing specifically with rights of indigenous peoples and states that:
Indigenous and tribal peoples shall enjoy the full measure of human rights and fundamental freedoms without hindrance or discrimination. The provisions of the Convention shall be applied without discrimination to male and female members of these peoples.
8. As the State noted in its comments in response to the draft report, the pertinent legal framework offers "great potential" for:
the broad development of the guarantees needed by indigenous peoples, which includes their legal system. This comment seems necessary in light of the fact that the State has been remiss in terms of fulfillment of those mandates during the past 15 years. It was not until 2000 that work began in a more committed and earnest manner within the Reform and Participation Commission, created by the peace agreements, despite some uncertainty with respect to representation.
B. Conclusions of Recent Reports on the Impact of the Armed Conflict on the Human Rights of the Indigenous Peoples of Guatemala
9. During the period covered by this report, the findings of valuable reports produced by governmental and non-governmental organizations have been published. They provide important insight into the impact of the armed conflict on the human rights of indigenous Guatemalans. These studies generally bear out, in greater detail, the conclusions of previous reports of this Commission.
10. The total number of victims of political violence during this period has been estimated at over 200,000 in the research and studies done. This figure covers persons who died or were subjected to forced disappearance as a result of the armed conflict in Guatemala that took place been 1962 and 1996. The vast majority of these victims were Guatemalans of Maya descent.
11. Guatemalans of Maya descent accounted for 83% of the victims who were fully identified by the Comisión para el Esclarecimiento Histórico [Commission for Historical Clarification] (CEH), during its documentation of the human rights violations and acts of violence related to armed conflict. During this process of documentation, the CEH identified 42,275 victims (men, women, and children), 23,671 of whom were victims of arbitrary execution and 6,159, victims of forced disappearance.
12. The counter-insurgency policy in Guatemala was, during several periods, marked by military action that was aimed at destroying entire groups and communities as such, as well as the geographical displacement of indigenous communities when they were thought to perhaps be providing assistance to the guerillas. During the most violent period of armed conflict (1978-1983), under the presidencies of Generals Romeo Lucas García (1978-1982) and Efraín Ríos Montt (1982-1983), military operations were concentrated in Quiché, Huehuetenango, Chimaltenango, Alta and Baja Verapaz, the south coast, and Guatemala city.
13. The massacres in the villages of Plan Sánchez and Dos Erres that occurred in 1982 are painful examples of the policy of extermination pursued with respect to the indigenous communities. The extermination of all the inhabitants of villages, whether they were children, women, or the elderly, under the pretext that they were collaborating with the guerillas, shows the utter contempt of persons carrying out such acts for their victims and their integrity as a people. In its report on the admissibility of this case, the Commission states:
The petition which gave rise to the present case denounced the massacre of 268 inhabitants of Plan de Sánchez, Baja Verapaz, by members of the armed forces of Guatemala on July 18, 1982. The petitioners submit that the massacre was perpetrated pursuant to a State policy "designed to defeat the insurgent movement through the strategic eradication of its civilian support base." They contend that the violations were committed on such a scale as to represent massive violations of the American Convention on Human Rights and the relevant dispositions of international humanitarian law, and constitute crimes against humanity and genocide.
The petitioners characterize the area of Rabinal as predominantly inhabited by members of the Maya population, and described Plan de Sánchez as having had an entirely Maya-Achi population at the time of the events in question. The petitioners allege that the military maintained a strong presence in Rabinal in 1982, and that soldiers came to Plan de Sánchez periodically to ask about the movements of male residents, and to intimidate members of the local population, particularly those who did not participate in the Civil Self-defense Patrols (hereinafter "PAC’s"). As a consequence, they contend that there "was a climate of considerable fear in the community in the first half of 1982," and the men would sometimes leave the community to hide from the soldiers.
14. With respect to the massacre of the inhabitants of Dos Erres village, the CEH concluded that the sole purpose of the action targeting the village was the total extermination of the community:
The Dos Erres massacre marked a crucial turning point that precipitated the displacement of many people living in the surrounding areas to other areas of Petén, while another segment of that population sought refuge in Mexico.
The CEH views this case as an illustration of operations aimed at the annihilation of the civilian population by units of the army, taking the form of the indiscriminate murder of all its inhabitants, the total destruction of their dwellings, and in general of all the property of these persons.
This case illustrates the extreme cruelty of the Guatemalan Army towards the defenseless population. There can be no justification whatsoever for the acts of torture, rape, abortions performed on pregnant women, killings taking the form of beatings of defenseless children, deadly punishment of the elderly, and the total destruction of the village. These events lead to the CEH to the conclusion that the sole purpose of such incidents as the one investigated was the total extermination of the community.
15. From colonial times to the present, Guatemala has engaged in discriminatory and racist practices manifested by a system of violent and dehumanizing relations, traditionally tied to State actions aimed at maintaining social exclusion through the perpetuation of conditions characterized by the concentration of power and productive wealth and opportunities for access to social services in the hands of a small and privileged sector of the population.
16. As the CEH has stated, racism, expressed as a doctrine of superiority and practiced by the Guatemalan State, was one of the causes of armed conflict and "is a major factor in explaining the particularly brutal and indiscriminate manner with which military operations were conducted against hundreds of Maya communities in the western and north-western part of the country, particularly between 1981 and 1983, when more than half of the massacres and razing of their land took place." The disproportionate response to the guerillas is explained by the fact that the counterinsurgency policy was aimed not only at destroying the social bases of the guerillas, but also at destroying the cultural values that fostered cohesion and collective action in the indigenous communities.
C. The Peace Agreements
17. In 1990, a process of negotiations aimed at establishing peace in Guatemala was started. This process culminated in 1996, and was aimed at ending the violent conflict that took place for more than 34 years. The parties, i.e., the Government of Guatemala on the one hand, and the URNG on the other, with the participation of a broadly-based Assembly of Civil Society, signed twelve agreements. The more noteworthy ones in terms of their relevance to the indigenous peoples of Guatemala are: the Agreement on Identity and Rights of Indigenous Peoples, the Agreement on Socio-Economic Aspects and the Agrarian Situation, and the Agreement on the Strengthening of Civilian Power and the Role of the Army.
18. The Agreement on Identity and Rights of Indigenous Peoples begins by recognizing the identity of the Maya, Xinca, and Garifuna peoples, and expresses the view that these peoples "have been particularly subject to de facto levels of discrimination, exploitation and injustice, on account of their origin, culture, and language and that, like many other sectors of the national community, they have to endure unequal and unjust treatment and conditions on account of their economic and social status." The Agreement recognizes:
That this historical reality has affected and continues to affect these peoples profoundly, denying them the full exercise of their rights and political participation, and hampering the configuration of a national unity which should adequately reflect the rich and diversified physiognomy of Guatemala with its wealth of values;
That until this problem affecting Guatemalan society is resolved, its economic, political, social and cultural potential will never be able to develop fully and neither will it be able to take the place in the community of nations due to it by virtue of its ancient history and the spiritual grandeur of its peoples;
That it will be possible to eliminate oppression and discrimination in Guatemala only if due recognition is given to all aspects of the identity and rights of the peoples who have inhabited and continue to inhabit it, all of whom are components of its present reality and protagonists in its development, in all senses.
19. Based on this recognition of identity that is "fundamental to the building of national unity based on respect for and the exercise of political, cultural, economic and spiritual rights of all Guatemalans," the Government of Guatemala pledged, by means of these agreements, to take a number of actions related to the identity of indigenous peoples, combating discrimination, cultural rights, and civil, political, social, and economic rights, including customary law, rights related to the lands of indigenous peoples, and regularization of land holdings.
20. Since the signing of the Agreement on a Firm and Lasting Peace on December 29, 1996, the date on which the Agreement on Identity and Rights of Indigenous Peoples took effect, there has been scant compliance with the commitments made with respect to these peoples; difficulties have been encountered, and some progress has been made in certain areas. This progress includes the establishment of an Office of the Ombudsman for Indigenous Women, the creation of a land fund, the formation of joint and special commissions with indigenous participation, and expanded health coverage and educational services in indigenous areas. In its response to the draft report, the State indicated that its poor record in terms of compliance with the agreements was due to the unilateral and authoritarian way in which the implementation process had been imposed, and that the establishment of commissions and funds amounted to little more than the addressing of goals in a formal rather than substantive manner. The State indicated:
The progress made in a few areas is the same as that pointed out earlier in the context of political and administrative recommendations and draft laws within the commissions established under the Peace Agreements, and those in which some respect is beginning to be shown for indigenous customs, and in cases where prior consultation is taking place with communities.
21. With respect to the joint and special commissions created by the State and indigenous organizations, problems related to internal disagreements among indigenous leaders have made it difficult for them to function, and, as a result, valuable proposals have fallen by the wayside. In addition, as a number of indigenous representatives have pointed out to the Commission, the Government has sometimes failed to respect indigenous customs within those commissions and failed to agree to prior consultation by indigenous leaders with their communities prior to their participation in decisions that have an impact on their constituencies.
22. One of the main commitments made by the State during the peace process was to work towards amendment of the Guatemalan Constitution so that it recognizes the existence of the different indigenous peoples who live in Guatemala and accords them guarantees and rights at the constitutional level, which are clearly spelled out in the agreements. Although this process was implemented, it failed to achieve its objectives, as is discussed below.
23. The commitments made in the peace agreements required, ultimately, a change in racist and discriminatory practices in Guatemalan society. The Commission is aware that in order to implement this, profound economic, social, and cultural change is required. This requires ongoing and joint effort between the State, economic and social agents, and indigenous peoples. It also recognizes that the Guatemalan Government has made efforts in this area in recent years, but that these have not been enough and have failed to involve the different sectors of society, in particular indigenous peoples.
24. The foregoing notwithstanding, mention should be made of the increased participation of indigenous leaders in local governments. This process of democratic stabilization was seen in 1998, when one-third of the municipal mayoral offices in Guatemala had a mayor who identified himself as being indigenous. Moreover, in the November 1999 elections, 16% of the representatives elected were indigenous, a significant increase compared to the paltry 5% in 1993. Despite this, indigenous peoples are still underrepresented in local and national governments given the ethnic composition of Guatemala.
25. Also, the signing of the agreements has provided greater guarantees and respect for the exercise by indigenous peoples and their organizations of the right to assemble, associate, and express themselves freely, which are essential to the exercise of their rights and the honoring of the commitments made in the peace agreements, which have been described by the current President as agreements of the State, and which he has pledged publicly to continue to implement.
26. However, from the vantage point of organizations, the level of compliance with the Agreement on Identity and Rights of Indigenous Peoples, in terms of the modification of public policies of the State towards the indigenous people, has been zero. They state, for example, that:
The practices of the State, the definition of institutions, its philosophy, doctrine, distribution of public expenditure, political pragmatism, as well as the adoption of laws, continue to favor one small social, economic, and ethnic group only. Therefore, widespread and intense discrimination and racism as a state policy, continue.
It is true that the eradication of discrimination will take a very long time, perhaps generations; however, to date, political will on the part of the State and its leaders is singularly lacking.
D. The Constitutional Reforms Attempted in May 1999
27. In the peace agreements, the Government pledged to encourage the Guatemalan Congress to amend the Constitution of Guatemala. In clause 12 of the Agreement on Firm and Lasting Peace, it was agreed that: "the constitutional amendments contained in the peace agreements constitute the substantive and fundamental basis for reconciliation of the Guatemalan society, within the framework of the rule of law, democratic coexistence, and the full observance and strict respect for human rights."
28. On October 26, 1998, the Guatemalan Congress approved the draft constitutional reforms that were designed to achieve the restructuring of the Guatemalan State and implementation of the peace agreements. Fifty amendments were submitted for approval of the people by means of a referendum held on May 16, 1999. The ballot contained four general questions on the amendments on which a vote was to be cast; the first on the nation and social rights, the second on the legislative branch, the third on the executive branch, and the fourth on the judicial branch.
29. With regard to indigenous peoples, the draft provided for amendment of Articles 1, 66, 70, and 143 of the current Constitution, recognizing that the Guatemalan nation is multicultural, multiethnic, and multilingual. It also provided for express recognition of the Maya, Xinca, and Garifuna people, for respect for and protection of their way of life, social organization, customs and traditions, languages, dialects, different forms of spirituality, and right to wear their traditional dress.
30. It further provided for express recognition of the traditional authorities of indigenous communities, and respect for access to their sacred places. Article 70 of the draft amendments states that when provision is made for measures that are likely to have a direct impact on indigenous peoples, they shall be directly consulted through the mechanisms to be established by a specific law.
31. There was a high rate of abstention in the referendum on these amendments. On the question of the nation and social rights, which included the amendments regarding the indigenous peoples, there were 327,854 votes in favor of the amendment and 366,591 against. In the case of the other questions, a majority of votes was also cast against the amendments.
32. The departments of Chimaltenango, Quiché, Baja and Alta Verapaz, and Petén, the ones most affected during the armed conflict, voted in favor of the amendments, inasmuch as they were hoping for change as a result of the peace agreements. However, the rate of abstention in these departments was higher than the national average. It was estimated that 10% of registered voters participated, as a result of such factors as a lack of information, trust, and organization. Against this backdrop of high abstention at the national level, the largest number of votes opposing the amendments came from Guatemala City and provided the margin needed for their rejection.
33. The rejection of the amendments can be attributed to the historical abstention from participation in electoral processes in Guatemala, a phenomenon that is heightened by a lack of representativity, educational capacity, and mobilization on the part of the political and social actors who favored the amendments. However, the decisive factor was the failure on the part of the Government to provide information on the proposed amendments, given the exclusion of broad social sectors from political life in Guatemala and the importance of their inclusion in this democratizing activity. Because of the weak educational campaign on the part of the State, a campaign of misinformation regarding the content of the amendments was carried out, which led to confusion among the people regarding the content and effects of these amendments. The thrust of this campaign was that the constitutional amendments pertaining to indigenous peoples would create a state within a state, would violate the principle of equality, dignity, and rights for all Guatemalans, and would, through recognition of the languages of the Mayas, Xincas, and Garifunas, destroy national unity.
34. In the view of the Commission, the agreements reached during the peace negotiations, if incorporated into the Constitution and implemented, would provide an important educational, political, and legal tool for combating the discrimination and segregation that has such a debilitating effect on the Guatemalan nation and state. For this reason, it is hoped that civil society and political actors will continue discussion and efforts aimed at their incorporation at the constitutional, legislative and all institutional levels. In that regard, the Commission is pleased that the current President has reaffirmed that these agreements set forth "State policies" and that he is willing to implement them in the most widespread and expeditious manner possible.
E. Legislative Instruments since1996
35. Despite the difficulties encountered in terms of progress with indigenous rights at the constitutional level, in recent years, a number of legal provisions have been enacted that are particularly relevant to the exercise of the rights of the indigenous peoples of Guatemala. This entire body of legal provisions strengthens pre-existing constitutional provisions, in particular Articles 58, 66 - 70, 71, 76, and 143 of the Constitution. These very important provisions enshrine principles that can be developed in the legislative sphere, and which, if implemented on a sustained basis, can lead to improvement in the situation of indigenous populations and the Guatemalan nation.
36. In this regard, the Commission reiterates that a favorable legislative framework is not enough to achieve, in practical terms, respect for and protection of the human rights of individuals and peoples. This must be accompanied by state policies and actions that are aimed at developing and enforcing domestic and international legal provisions. As the State indicated in its comments, this institutional framework must spell out policies and actions to be carried out not only by the government but also by the nation, with the genuine participation of all peoples, which would generate public policies in this area.
37. The main provisions enacted in Guatemala in recent years regarding the rights of indigenous peoples are as follows:
1. Establishment of a General Bureau for Bilingual and Intercultural Education (DIGEBI)
38. The first part of the provision stipulates that the Guatemalan State is composed of a multiethnic, multilingual, and multicultural society. Article 3 states that the philosophy of bilingual education is based on the coexistence of different cultures and languages in the country, and oriented toward strengthening unity in a context of cultural diversity in Guatemala.
2. ILO Convention 169 concerning Indigenous and Tribal Peoples in Independent Countries
39. The ratification of this instrument is especially important in light of the fact that Article 46 of the Guatemalan Constitution stipulates that human rights treaties and conventions ratified by Guatemala, such as Convention 169, will take precedence over domestic law. It should be borne in mind that the ILO expressly stated that this Convention is an international human rights instrument.
3. Law on the Dignity and Integral Promotion of Women
40. Article one of this legislative provision states that the law is based on recognition of the fact that Guatemala is a multicultural and multilingual nation and on the constitutional provisions of respect for freedom, equality, human life and equality before the law. Article two defines discrimination against women as any distinction, exclusion, or restriction based on gender, ethnicity, and religion, among others, that is designed to interfere or actually interferes with or suppresses recognition, enjoyment, or exercise of their social and individual rights enshrined in the Guatemalan Constitution and other laws, regardless of their marital status, and based on equality between men and women, human rights, and fundamental freedoms in the political, labor, economic, ecological, social, cultural, and civil or any other sphere.
41. Article 9 stipulates that the State shall guarantee all women national education under equal conditions, at all phases of the educational process, and shall foster respect for and appreciation of their cultural identity, while safeguarding the unity of the nation. Section c of this provision stipulates that the national educational system has an obligation to offer indigenous students the option of attending school in the clothing and attire that reflect their cultural heritage.
42. In addition, Articles 19, 20, 23, and 27 spell out a number of provisions pertaining to indigenous peoples in relation to the implementation of specific mechanisms in the areas of culture and the mass media, and in the economic, political, and law enforcement spheres.
4. Establishment of the Office of the Ombudsman for Indigenous Women
43. The mission of this Office is to address "the special situations of vulnerability, defenselessness, and discrimination against indigenous women. To that end, it shall take action aimed at the defense and full exercise of their rights."
F. Economic, Social, and Cultural Rights of Indigenous Peoples
44. The Commission regrets the fact that it has to reiterate in this report the comments made in the chapter on economic and social rights of its 1993 report regarding the discriminatory and deplorable living conditions of the poor in Guatemala, comprised, for the most part, of indigenous Guatemalans. Virtually all indigenous peoples live below the poverty line, a situation that has an impact on educational services, health, literacy, sanitation services, employment, and the status of women and children. According to United Nations reports, 90% of the rural population in Guatemala live in poverty, and 69% in abject poverty.
45. It should be noted that the economy of Guatemala is based on agriculture. According to the Guatemalan Ministry of Agriculture, Livestock, and Food, 96% of rural farmers in Guatemala, who, for the most part are indigenous, farm only 20% of the land. This sector is described as functioning below or at the subsistence level; in other words, production is generally low and barely enough to meet the needs of families. This prompts the temporary migration of large sectors of the population from the highlands to the coast to work in companies involved in the export of agricultural products.
46. Companies involved in the export of agricultural products are located largely on the very fertile lands and plains of the coast and in areas between the mountain and the coast. They provide a source of low and temporary income for landless farmers and persons whose production is below the subsistence level. Each year, during the harvesting period, several hundred thousand indigenous workers go to those areas, where they generally toil in working conditions that are illegal and receive salaries that are below the legal minimum wage. Living and housing conditions are abysmal, and their attempts to join unions are attacked. The Commission has verified time and time again the weakness of the State apparatus for protecting the rights of domestic migrant workers, who, for the most part, are indigenous.
47. The indigenous population is based in the highlands, where the land is not fertile, is overworked, and is used for small-scale farming. Despite this, small and mid-level farmers produce more than a quarter of the coffee in Central America and 35% of non-traditional exports.
Percentage of farmers by type and percentage of agricultural land farmed:
Type of farmers % of the total number of farmers % of farmland
Below subsistence level 37.0 3.0
Subsistence level 59.0 17.0
Above subsistence level 3.85 10.0
Commercial level 0.15 70.0
48. Insufficient food, abject poverty, and the absence of preventive health policies are the cause of health problems among the indigenous population in Guatemala. The main causes of disease and health problems of the indigenous peoples are linked to the environmental health conditions in the communities and the working conditions of paid agricultural workers.
49. Eighty percent of doctors in Guatemala are located in the metropolitan region. In the rural areas where the majority of the population lives and the groups at highest risk are concentrated, care is provided by nursing assistants, rural health workers, midwives, and community health volunteers.
50. The Commission is pleased to note that the Guatemalan Ministry of Education is making an effort to develop policies at the national level aimed at expanding the coverage and quality of education and modernizing the institutions of the sector.
51. A report published by the Education for All Program in Guatemala states that "education is a primary factor in achieving social development and primary education continues to be the area that receives the most support. However, this same report states that, in 1998, of 656,721 children who were at the age for pre-primary, nursery, and bilingual education, only 37.4% attended such schools at the national level, and in the rural areas, this figure stood at only 31%.
52. Primary education coverage increased significantly between 1989 and 1998 (net rate of 8.5%), with greater uniformity being seen at the national level. Middle school education continues to be provided largely in the department that covers the capital, where there is a 65% enrolment in the basic education program, and 86% in the diversified program.
53. According to the Report entitled "Rostro Rural del Desarrollo Humano [The Rural Face of Human Development]," in 1998, the rate of illiteracy at the national level stood at 31.7% for persons over age 14, and in rural areas, at 40%. Although it fell by 7% between 1994 and 1998, it continues to be one of the highest in the Hemisphere. The same report indicates that obstacles to literacy and basic education resulting from rural life (problems with access and population dispersion) have been greater than those linked to cultural and linguistic gaps.
54. In the view of the Commission, although the State has taken actions aimed at expanding the coverage and quality of education in Guatemala, these have not been enough to have an impact on the general situation -- particularly in light of the discrimination against the indigenous peoples in rural areas -- as promised by the State in the peace agreements and in the development program of the present Government.
G. Right to Ownership of Indigenous Lands
55. As the Agreement on Economic Aspects states:
Guatemala is in need of judicial reform related to agriculture and institutional development in the rural sector so that an end can be put to the lack of protection and dispossession from which small farmers, and in particular indigenous peoples, have suffered, so as to permit full integration of the rural population into the national economy and regulate land use in an efficient and environmentally sustainable manner in accordance with development needs. To this end, and taking into account in all cases the provisions of the Agreement on Identity and Rights of Indigenous Peoples….
56. The indigenous population is structured on the basis of its profound relationship with the land, which, in the case of Guatemala, means a significant portion of the territory where indigenous peoples have lived and worked since ancestral times. However, as indicated earlier, the majority of productive land in Guatemala is owned by a small group of non-indigenous people. In 1988, the pastoral letter of the Bishop of Guatemala reflected the clamor for land:
No one can deny the great inequality that currently exists with respect to landholding. The agrarian problem in Guatemala is currently seen from the perspective of the big landholders versus the small landholders, outside of which is the vast majority of farmers who do not own any land.
57. The unequal distribution of land is compounded by the current legal uncertainty regarding the property rights, particularly those of the indigenous communities, which makes them especially vulnerable and open to conflicts and violation of rights. In most instances, the indigenous communities have property titles that are not recognized under common law, that are at odds with other titles, or that have not been fully registered and recognized. Added to these difficulties is the fact that in some instances, the courts are unaware of the rights derived from their ancestral ownership and use, and do not recognize custom-based indigenous legal provisions. This blocks or considerably limits their ability to assert these rights, as well as recognition of ancestral possession of their lands.
58. In this regard, consideration should be given to the following provisions that are in effect in Guatemala:
ILO Convention 169 (Article 14):
1. The rights of ownership and possession by the peoples concerned of the lands which they have traditionally occupied shall be recognized. In addition, measures shall be taken in appropriate cases to safeguard the right of the peoples concerned to use lands not exclusively occupied by them, but to which they have traditionally had access for their subsistence and traditional activities. Particular attention shall be paid to the situation of nomadic peoples and mobile farmers in this respect.
2. Governments shall take steps as necessary to identify the lands that have been traditionally occupied by the peoples concerned, and to guarantee effective protection of their rights of ownership and possession.
3. Adequate procedures shall be established within the national legal system to resolve land claims by the peoples concerned.
Article 67. Protection of indigenous lands and agricultural cooperatives. Lands held cooperatively by the indigenous communities or any other form of communal or collective land holding by farmers, as well as family property and communal dwellings shall receive special protection from the State, which shall provide assistance in the form of credit and preferential technologies that protect their ownership and development, in order to guarantee all inhabitants a better quality of life.
Indigenous and other communities that own lands which, historically, have belonged to them and traditionally have been subject to a special form of administration shall maintain that system.
Article 68. Lands for indigenous communities. By means of special programs and appropriate legislation, the State shall provide state lands to the indigenous communities that need such lands for their development.
59. Furthermore, one of the commitments made by the State in the peace agreements, ratified by the current President as State agreements, pertains to the need to develop legislative and administrative measures for the recognition, titling, protection, claims, return, and compensation for the land rights of indigenous peoples:
The rights relating to the land of the indigenous peoples include both communal or collective and individual land tenure, rights of ownership and possession and other real rights, and the use of natural resources for the benefit of the communities without detriment to their habitat. Legislative and administrative measures must be developed to ensure recognition, the awarding of titles, protection, recovery, restitution and compensation for those rights.
The lack of protection of the rights relating to land and natural resources of the indigenous peoples is part of a very wide-ranging set of problems resulting, inter alia, from the fact that both the indigenous and the non-indigenous peasants have had difficulty in having their rights legalized through the acquisition of title and land registration. When, in exceptional cases, they have been able to have their rights legalized, they have not had access to legal mechanisms to defend them. Since this problem is not exclusive to the indigenous population - although the latter has been particularly affected - it should be dealt with in the context of "socio-economic aspects and the agrarian question", as one of the considerations to be taken into account in connection with the reform of the land tenure structure.
However, the situation with regard to the particular lack of protection and plundering of indigenous communal or collectively held lands merits special attention within the framework of this agreement. The Guatemalan Constitution establishes the obligation of the State to give special protection to cooperative, communal or collectively-held lands; recognizes the right of indigenous and other communities to maintain the system of administration of the lands which they hold and which historically belong to them; and lays down the obligation of the State to provide State lands for the indigenous communities which need them for their development.
Recognizing the special importance which their relationship to the land has for the indigenous communities, and in order to strengthen the exercise of their collective rights to the land and its natural resources, the Government undertakes to adopt directly, when that is within its competence, and to promote, when that is within the competence of the legislative organ or the municipal authorities, the following measures, inter alia, which shall be implemented in consultation and coordination with the indigenous communities concerned.
The Government shall adopt or promote measures to regularize the legal situation with regard to the communal possession of lands by communities which do not have the title deeds to those lands, including measures to award title to municipal or national lands with a clear communal tradition. To that end, an inventory of the land tenure situation shall be drawn up in each municipality.
60. In the case of landholding and the use and management of natural resources, the Government pledged to recognize and guarantee access to lands and resources that are not exclusively occupied by the communities but to which they have traditionally had access for their traditional activities and used for subsistence purposes (easements, passage, grazing, spring water access, etc., and use of natural resources) and for their spiritual activities; to recognize and guarantee the right of communities to participate in the use, management, and conservation of the natural resources on their lands; to obtain the approval of the indigenous communities before undertaking any project involving natural resource exploration that can affect the subsistence and way of life of the communities; to grant the communities affected equitable compensation for any damages that they may suffer as a result of these activities; and to adopt, in conjunction with the communities, the measures necessary to protect and preserve the environment.
61. With regard to the return of communal lands and compensation for rights and in recognition of the particularly vulnerable situation of the indigenous communities arising from the fact that historically they have been the victims of plunder of their lands, the Government pledged to institute proceedings to settle the communal land claims of communities, to return these lands to them or to provide them with compensation, and, in particular, to adopt or work towards the following measures: to suspend supplementary titles to properties being claimed by the indigenous communities; to suspend statutes of limitation for any proceedings related to the plunder of indigenous communities; and, in instances where statutes of limitations have already expired, to establish procedures for compensating the communities that have been the victims of plunder with lands acquired for that purpose. In addition, it pledged to take the measures necessary, while ensuring that such action did not affect ownership by small farmers, to implement the constitutional mandate of providing state lands to the indigenous communities that need them for their development.
62. In order to protect the rights of indigenous communities and to provide proper protection to these communities, the Government pledged to adopt or to work towards implementation of the following measures: to develop legal provisions permitting indigenous communities to administer their lands in accordance with their custom-based practices; to strive to increase the number of courts that can handle land matters and to streamline procedures for settling these cases; to urge the faculties of law and social sciences to strengthen the agrarian law component of their curricula, including information on custom-based provisions in this area; to establish the pertinent legal advisory services to settle land claims; to provide, free of cost, the services of interpreters to the indigenous communities for legal matters; to make an effort to circulate, as widely as possible, information within the indigenous communities on agrarian rights and available legal resources; and to eliminate all forms of de facto or de jure discrimination against women in terms of access to land, housing, and credit, and participation in development projects.
63. There has been virtually no fulfillment by the State of these commitments. The legislation necessary for granting the indigenous communities due legal protection of their lands has not been enacted and they have not been provided with state lands. Efforts have been made, through CONTIERRA, to provide legal advice and assistance to farmers, agricultural workers, and/or their organizations in the area of conflict resolution. This has reduced the tension in the land cases in which it has been involved, particularly in Petén. However, because of the high level of conflict surrounding the land issue as a result of the absence of a national registry, the plunder experienced by the indigenous communities, and the depletion of their lands, the Guatemalan State must make a greater effort to achieve the objectives set forth in the peace agreements.
64. In this regard, MINUGUA has stated in its verification report on the situation regarding land commitments that:
The absence of legislation permitting full recognition of the right of the indigenous communities to keep their land management system and the failure of the State to fulfill its obligation enshrined in the Constitution to provide state lands to the communities that need them for their development and to guarantee their right to participate in the use, management, and conservation of the natural resources on their lands, have led to serious social conflict. In addition, communal or collectively owned lands run the risk of being considered municipal lands or, even worse, uncultivated lands. In addition, the Government pledged to develop legal instruments that permit indigenous communities to manage their lands in accordance with their custom-based practices.
65. With regard to regularizing the status of lands, the only action taken has been the decentralization of information and even this effort has been deficient. Those deficiencies are jeopardizing the historical recording of land adjudications in a country with the highest level of rural occupation in the Americas and where the majority of the rural population is indigenous and lives in organized communities.
66. In the view of the Commission, this point is extremely important given the fact that democratic stability has given rise to renewed interest by companies and individuals outside the indigenous communities in exploiting their lands and natural resources. Legal uncertainty and the fact that the State has been slow to recognize and enforce indigenous rights with respect to their lands and resources are not only creating conditions that are conducive to conflict arising from individual violation of rights, but are also endangering the fragile system of democracy that is beginning to take root in Guatemala, after so many years of fratricidal warfare.
1. In light of the foregoing analysis, the Commission recommends that the Guatemalan State:
2. Fulfill all its obligations made in the peace agreements with respect to indigenous communities and their members and spelled out in the Agreements on the Identity and Rights of Indigenous Peoples, Socio-Economic Aspects and Agrarian Reform, and the Strengthening of Civil Authority and the Function of the Army.
3. Based on the wealth of documentation and evidence that exists, investigate, prosecute, and punish all persons responsible for the massacres and violation of the rights of individuals and indigenous communities to life, integrity, and other human rights which occurred during the armed conflict.
4. Take the necessary steps and establish rapid and effective special mechanisms for settling conflicts related to ownership, and provide guarantees and legal security to the indigenous communities regarding the ownership of their properties, and provide state lands to the communities that need them for their development, as set forth in Article 68 of the Guatemalan Constitution.
5. Foster respect for the labor rights of indigenous people taking into account the provisions set forth in ILO Convention 169 and monitor compliance with labor laws, especially those pertaining to domestic seasonal migrant workers who move to farms in the south and on the coast, and impose sanctions on employers who violate provisions in effect, as required by law.
6. Adopt, as soon as possible, the measures and policies necessary to establish and maintain an effective preventive health and medical care system, to which all members of the different indigenous communities have access, take advantage of the medicinal and health resources of indigenous cultures, and provide these communities with resources to improve their environmental health conditions, including drinking water and sewage services.
7. Develop policies aimed at the qualitative improvement of and social investment in rural areas in order to guarantee indigenous peoples equal opportunities and access to primary and secondary educational services, thereby improving internal efficiency and reducing illiteracy in these communities.
8. Take positive steps in the educational, legislative, and other spheres regarding the general population, in order to reduce division and discrimination towards different ethnic groups in particular, to achieve equal opportunities, to reduce stereotypes and mistrust, and to reestablish the right of all Guatemalan citizens to dignity, free of discrimination.
67. It should be acknowledged that, with respect to recommendations 4 and 5 specifically, the State indicated in its comments on the draft report that:
In that regard, the lack of progress in terms of legislation that benefits indigenous peoples is acknowledged. The recommendations of the Commission, which stress the adoption of rapid and effective mechanisms for guaranteeing the right to indigenous property and the provision of lands to indigenous communities, respect for labor rights, preventive health and medical care, and social investment that guarantees equal opportunities and reduced discrimination and exclusion, are fully accepted.
Notes Ch. XI______________
 See, in particular, the 1985, 1993, and 1994 special reports, which can be accessed on the Commission's website (www.cidh.org).
 Source: BEST Project 520-0374, USAID-Guatemala.
 UNDP, The rural face of human development [El rostro rural del desarrollo humano].
 1994 census.
 Article 3, first part.
 See the list of IACHR reports related to the situation of human rights in Guatemala in the introduction, supra, notes 3 and 4.
 CEH, Guatemala: Memory of Silence.
 Established by means of the Oslo Agreement of June 23, 1994, signed by the Government of the Republic of Guatemala and the Unidad Revolucionaria Nacional Guatemalteca (URNG) in order to shed light in an objective, equitable, and impartial manner on the human rights violations and violence linked to the armed confrontation that took place between the time that this confrontation started (1962) and the signing of the Agreement on Firm and Lasting Peace (1996).
 This figure represents only those cases identified by the CEH.
 In the 1983 special report on Guatemala, the Commission recommended that the Guatemalan State investigate and punish, to the full extent of the law, the perpetrators of the massacres of indigenous peoples, which occurred in the rural areas of the country during the armed conflict. This recommendation was repeated in subsequent special reports and in Annual Reports that addressed the situation of human rights in Guatemala. The 1994 Annual Report of the Commission stated that impunity produces consequences that go beyond the rights of victims, and creates a climate that affects the security of citizens, promotes corruption, and is incompatible with the rule of law.
 IACHR, Report No. 31/99, Case 11,763, Plan Sánchez Massacre, Guatemala, March 11, 1999.
 CEH, Guatemala: Memoria del Silencio.
 75% of the best land in Guatemala is concentrated in the hands of less than 1% of farmers. MINUGUA, La situación de los compromisos relativa a la tierra en los acuerdos de paz, May 2000.
 CEH, supra.
 Framework Agreement for Resumption of Negotiations Between the Government of Guatemala and the URNG (January 1994); Global Human Rights Agreement (March 1994); Agreement for the Resettlement of Populations Uprooted by the Armed Conflict (June 1994); Agreement on the Establishment of the Commission for the Historical Clarification of Human Rights Violations and Acts of Violence which have Brought Suffering to the Guatemalan People (June 1994); Agreement on Identity and Rights of Indigenous Peoples (March 1995); Agreement on Socio-Economic Aspects and the Agrarian Situation (May 1996); Agreement on the Strengthening of Civilian Power and the Role of the Army (September 1996); Agreement on the Definitive Cease-fire (December 1996); Agreement on Constitutional and Electoral Reform (December 1996); Agreement on the Basis for the Reincorporation of the URNG into Legality (December 1996); Agreement on the Timetable for the Implementation, Fulfillment and Verification of the Peace Agreements (December 1996); Agreement on Firm and Lasting Peace (December 1996).
 Agreement on Identity and Rights of Indigenous Peoples, 1995.
 MINUGUA stated on August 8, 2000 that "Five years after the signing of the Agreement on Identity and Rights of Indigenous Peoples, a high level of non-compliance with the commitments made in the substantive agreements can be noted. The Mission expresses its regret over the fact that no follow-up to the work of the joint commissions has taken place and that its proposals have not been implemented. Recognition of indigenous identity as a condition for national unity continues to be necessary, and the measures leading to an end to historical discrimination and to the recognition of indigenous cultural expression as the cornerstone of Guatemalan culture continue to be a topic of discussion. Within the context of the political, economic, and social rights of indigenous peoples, it can be stated that this is a central topic of Guatemalan political debate. However, a reasonably satisfactory level of compliance has not been achieved. This situation is cause for grave concern in a country where the indigenous presence is essential to its development and political and economic stability in the medium and long term.”
 Joint commissions were established for the Official Recognition of Languages, Educational Reform, Spirituality and Sacred Places, Reform and Participation, and Rights Related to the Lands of Indigenous Peoples.
 The Commission should note that expanded health coverage and educational services in the indigenous areas has not taken place in a context of respect for indigenous customs and culture, but rather, using the standards of the ladinos (non-indigenous), something that is in keeping with the approach of Guatemalan Government entities of taking action without the consultation or participation of the populations concerned, particularly the indigenous peoples.
 UNDP, El rostro rural del desarrollo humano.
 Analysis document, Office of the Ombudsman for Maya Affairs, March 29, 2000.
 Reforms consulted with respect to indigenous peoples.
Current constitutional provision:
Article 1. Protection of persons. The Guatemalan State is organized so as to protect persons and families; its supreme goal is to achieve the common good.
Draft constitutional reform:
Article 1. Human beings and the nation. The Guatemalan State is organized so as to protect human beings and the family; its supreme goal is to achieve the common good.
The Guatemalan nation is one single nation; within its unity and territorial integrity, it is multicultural, multiethnic, and multilingual.
Current constitutional provision:
Article 66. Protection of ethnic groups. Guatemala is made up of various ethnic groups, among them indigenous groups of Maya descent. The State recognizes, respects and encourages their ways of life, customs, traditions, social organization, use of indigenous dress by men and women alike, languages and dialects.
Draft constitutional reform:
Article 66. Identity and spirituality of indigenous peoples. The State recognizes, respects, and protects the right to identity of the Maya, Garífuna, and Xinca people; their ways of life, social organization, customs, and traditions; use of indigenous dress by men and women alike, and their different forms of spirituality, languages, and dialects, and their right to pass these on to their descendants. For these purposes and under the terms of the final paragraph of Article 203 of this Constitution, the State recognizes the traditional authorities of the indigenous communities, and that priority shall be given to the unity of the Nation, territorial integrity, and the indivisibility of the Guatemalan State. It also recognizes, respects, and protects their right to use, conserve, and develop their art, science, and technology, as well as the right of access to the sacred places of these peoples, under the terms and conditions set forth in the law.
Current constitutional provision:
Article 70. Specific law. A law shall regulate matters pertaining to the topics covered in this section.
Draft constitutional reform:
Article 70. Specific laws. A law shall regulate matters pertaining to the topics covered in this section.
In situations where provision is made for administrative measures that are likely to have a direct impact on indigenous peoples, these peoples shall be consulted through mechanisms to be established through another specific law.
Current constitutional provision:
Article 143. Official language. The official language of Guatemala is Spanish. Native dialects are part of the cultural heritage of the Nation.
Draft constitutional reform:
Article 143. Language. The following are official State languages: Spanish, throughout national territory, and the indigenous languages established by law. Their actual scope of application shall be established in accordance with technical, linguistic, and territorial criteria.
The State recognizes, respects, and promotes the following indigenous languages: Achi', Akateko, Awakateko, Chalchiteko, Ch'orti', Chuj, Itzá, Ixil, Popti', Kaqchikel, K'iche', Mam, Mopan, Poqoman, Poqomchi, Q'anjob'al, Q'eqchi', Sakapulteko, Sipakapense, Tekiteko, Tz'utujil, Uspanteko, Garifuna, and Xinka.
 In its comments on the draft report, the State asserted that:
“It does not agree that this abstention was the result of a weak information campaign by the Government, inadequate work by the State to educate the population, or the inability of the political actors to mobilize the people. The decisive factor, it should be noted, was that these political actors, because of their leadership position on the one hand, and status as former insurgents on the other, exploited the topic and stripped the process of legitimacy by generating suspicion and apathy among the population, factors that lead to abstention.”
Furthermore, the State "holds the view that formal and legal mechanisms remain necessary, provided, of course, that the entities responsible for proposing and approving them are aware of practices related to multiculturalism, in order to achieve genuine and positive results that serve to shape these legal mechanisms." In this regard, the State concluded by indicating that "instead of discussions, action should be taken if there is a desire to begin a meaningful process that favors recognition of the rights of the indigenous peoples.
 Government Decision 726-95. Presidency of the Republic, published in the Diario de Centro América, February 8, 1996.
 Ratified on June 5, 1996 and in effect in Guatemala since June 1997.
 Decree 7-99, published in the Diario de Centro América, April 9, 1999.
 The objectives of the law are: (a) to promote the comprehensive development of women and their participation at all levels of economic, political, and social life in Guatemala, (b) to foster the development of basic rights that relate to the promotion and dignity of women and are enshrined in the Guatemala's Constitution, international human rights conventions on women, and plans of action resulting from international conferences on women, with responsibility for such action being assigned to public and private institutions, as appropriate.
 Government Decision 525-99, Presidency of the Republic, published in the Diario Centro de América on July 20, 1999.
 In its 1993 Annual Report, the Commission noted that very wide gaps existed in terms of effective enjoyment of economic, social, and cultural rights in Guatemala and that in effect, large sectors of the populations were being discriminated against, in particular, Guatemalans of Maya descent. It also indicated that the indivisibility of those rights from civil and political rights was particularly manifest in the case of Guatemala. Inequality in the distribution of income, essential services, and ownership of land, and the lack of respect for the property of farmers and Maya people were the areas in which this problem was most acute.
 The two representative forms of agriculture that exist in Guatemala are: agriculture for export purposes and for subsistence and domestic market purposes.
 In its 1994 Annual Report, the Commission noted the widespread violation of labor laws in Guatemala, particularly in the rural areas, with no effective administrative or judicial entities to ensure enforcement of the law or the peaceful settlement of disputes. Also, in its 1996 Annual Report, the Commission stated that despite the fact that the law stipulated a minimum wage (which was insufficient), this provision was not always observed, particularly in rural areas. In addition, provisions related to health and labor safety were considered inadequate and even so, were not observed. At that time, the United Nations Commission on Economic, Social, and Cultural Rights stated that it was “deeply concerned over the clear and manifest violation of labor law, the disturbing information provided regarding the impunity of employers, and non-compliance with provisions related to the minimum wage, working conditions, and unionization, particularly because this situation impacts persons employed, for the most part, in the agricultural sectors.”
 MINUGUA, La situación de los compromisos relativos a la tierra [Status of land commitments].
 Respiratory illnesses, malnutrition and anemia, gastrointestinal illness and malaria. IDIES, 1995.
 Pan American Health Organization, Health Profile 1999 (2000).
 Ministry of Education, "Education for All Program,” 1999.
 UNDP, Guatemala, 1999.
 UNDP, Guatemala, 1999.
 Agreement on Socio-Economic Aspects and Agrarian Situation.
 Agreement on Identity and Rights of Indigenous Peoples, 1995.
 Presidential office established in 1997 to provide assistance with legal matters and the settlement of land-related conflicts.
 MINUGUA, The situation regarding the commitments concerning land in the peace agreements.