The case of Guatemala seems to confirm the dismal observation that justice for the victims of human rights atrocities is a recurring casualty of negotiated settlements to war. Some form of amnesty has been promulgated in every Latin American country that has undergone a democratic transition in the last 20 years, and the Law of National Reconciliation continues this trend in Guatemala.
Like its counterparts elsewhere, the amnesty law will coexist with a national truth commission, the CEH. With the help of international and national human rights groups, the Commission may well fulfil some of the investigatory functions of which the legal system is currently incapable, providing essential information on the fate of the disappeared, and locating the remains of those killed. Crucially, it also remains, with the courts, the main arena for the ongoing struggle against official silence and legal impunity, a struggle which is central to strengthening the rule of law, which in turn is a precondition for democratic consolidation.
As outlined in the CEH accord, Guatemala's truth commission has limited investigatory powers, cannot name names, nor can its findings be employed in a court of law. While all this deeply weakens its challenge to official impunity, there are still substantial battles to be fought on all these fronts both within and on behalf of the Commission:
Firstly, on the question of individualising responsibility, the director of the Commission, Christian Tomuschat, has already indicated considerable flexibility, saying that "the institutional responsibility should be clearly stated...but if we simply say that it was the army or the URNG, that would be too little." Naming the battalion responsible for a massacre, it is suggested, and the commanding officer at the time, without explicitly attributing individual responsibility, might be one way to deal with this issue.
Secondly, it could prove difficult to enforce the principle of the non-legal status of Commission findings. Moreover, once information is in the public domain, it could provide leads for, and an impetus to, criminal prosecutions.
Finally, the legal status of both the Commission and its findings will depend ultimately on diverse and contradictory decisions taken within the legislative and justice systems in Guatemala, as well as in international courts. While the Commission lacks legal teeth in the original accord, there is no reason why this could not be altered in subsequent legislation under pressure from national or international actors.
The role of civic human rights groups has clearly had to adapt in the new post-war scenario, from monitoring violence during the peace talks towards advocating reconciliation and justice. Given endemic corruption in the Guatemalan state, there is also a new role for such groups in administering war reparations. The human rights confederation, the National Co-ordination of Human Rights in Guatemala (CONADEHGUA), has already identified mechanisms to define victims and channel redevelopment funds to the neediest communities. To faithfully represent victims' rights and ensure that state institutions pursue justice and truth to the fullest extent possible, however, one traditional role that civil groups cannot afford to relinquish is that of government watchdog.
The aim of the Commission for Historical Clarification is:
"To clarify with all objectivity, equity and impartiality the human rights violations and acts of violence that have caused the Guatemalan population to suffer, connected with the armed conflict."
Page one, Accord on the Commission for Historical Clarification.
The mere existence of a truth commission in Guatemala owes a great deal to pressure from civil society organisations such as GAM and the Catholic Church's human rights office. In the coming years, and especially after MINUGUA leaves the country, such groups can continue to make a significant contribution to peacebuilding by investigating violent acts, making amnesty difficult to obtain for offenders, urging criminal prosecutions where possible, and generally pursuing the creation of a 'state of right'.
Establishing the Commission for Historical Clarification
Due to a lack of finance, the CEH began its work seven months behind schedule in August 1997. During this extended delay, three Commissioners were chosen to head the organisation. Two of these, labour lawyer Balsells Tojo and indigenous educational expert Otilia Lux de Cotí, were Guatemalans, but neither had a particularly high human rights profile. The third Commissioner and overall director was Professor Christian Tomuschat, a German who had been a UN independent human rights expert to Guatemala in the late 1980s.
Prior to its opening, a 12-month operating budget of close to $8 million was put together. The budget allowed for the running of four offices with 60 staff. The Guatemalan government had originally pledged $50,000 towards these costs, but increased their contribution to $800,000 due to pressure from the international community. Foreign governments such as the United States, Canada and several European countries are to make up the shortfall.
It has been agreed that the Commission will be separated into two divisions – one to investigate violations during the war and the other to write a history. The staff – half foreigners, half nationals – includes 40 investigators who will take new testimony and review existing information gathered by REMHI and GAM.
Authors note: research for this article was funded by the British Academy. Thanks are also due to Erik Aldana, Wilfredo Ardito, Helen Duffy, Alfonso Huet, Noé Iriza, Fernando Morales, Marcie Mersky, Mario Polanco, Madre Rosario, Luis Ramirez, Roberto Rodriguez, Alejandro Rodriguez, and Fernando Suazo.