III. Reparatory measures

The CEH considers that truth, justice, reparation and forgiveness are the bases of the process of consolidation of peace and national reconciliation. Therefore, it is the responsibility of the Guatemalan State to design and promote a policy of reparation for the victims and their relatives. The primary objectives should be to dignify the victims, to guarantee that the human rights violations and acts of violence connected with the armed confrontation will not be repeated and to ensure respect for national and international standards of human rights.

On this basis, the CEH recommends:

National Reparation Programme

7. That the Guatemalan State, by means of appropriate measures taken by the Government and the Congress of the Republic, urgently create and put into effect a National Reparation Programme for the victims, and their relatives, of human rights violations and acts of violence connected with the armed confrontation.

8. That, to this end, the Government present to the Congress of the Republic, with the utmost urgency, a legislative bill on reparation for the victims of the armed confrontation which activates the National Reparation Programme. The said bill should set out the general principles and the structure of the programme, the categories of the beneficiaries, the measures, the procedures for the identification of the beneficiaries, the manner and the financial mechanisms, to be set forth below.

Principles and measures

9. That the National Reparation Programme include a series of measures inspired by the principles of equality, social participation and respect for cultural identity, among which at least the following should figure:

a) Measures for the restoration of material possessions so that, as far as is possible, the situation existing before the violation be re-established, particularly in the case of land ownership.

b) Measures for the indemnification or economic compensation of the most serious injuries and losses resulting as a direct consequence of the violations of human rights and of humanitarian law.

c) Measures for psychosocial rehabilitation and reparation, which should include, among others, medical attention and community mental health care, and likewise the provision of legal and social services.

d) Measures for the satisfaction and restoration of the dignity of the individual, which should include acts of moral and symbolic reparation.

10. That, depending on the type of violation, the reparatory measures be individual or collective. Collective reparatory measures should be implemented in such a way as to facilitate reconciliation between victims and perpetrators, without stigmatising either. Therefore, collective reparatory measures for survivors of collective human rights violations and acts of violence, and their relatives, should be carried out within a framework of territorially based projects to promote reconciliation, so that in addition to addressing reparation, their other actions and benefits also favour the entire population, without distinction between victims and perpetrators.

11. That, for the process of reparation to become one of the principal bases for the process of national reconstruction and reconciliation, it is vital that Guatemalan society participate actively in the definition, execution and evaluation of the National Reparation Programme. This participation is especially important in the case of the Mayan population, which was affected with particular severity by the violence. In the specific case of measures for collective reparation it is essential that the beneficiaries themselves participate in defining the priorities of the reparation process.

Beneficiaries

12. That the beneficiaries of the moral and material reparatory measures must be the victims (or their relatives) of the human rights violations and of the acts of violence connected with the internal armed confrontation.

13. That for the purposes of the programme, victims are considered to be those persons who have personally suffered human rights violations and acts of violence connected with the internal armed confrontation.

14. That in those cases where individual economic indemnification is appropriate, prioritisation of the beneficiaries must be established, taking into consideration the severity of the violation, their economic situation and social vulnerability, and paying particular attention to the elderly, widows, minors or those who are found to be disadvantaged in any other way.

15. That the identification of Programme’s beneficiaries should be guided by criteria of clarity, justice, equality, speed, accessibility and broad-based participation.

Structure of the programme

16. That the Board of Directors of the Programme be composed of nine members: i) two persons appointed by the President of the Republic; ii) two persons appointed by the Congress of the Republic; iii) one person designated by the Human Rights Ombudsman; iv) a representative from the victims’ organisations; v) a representative from the human rights organisations; vi) a representative from the Mayan organisations; vii) a representative from the women’s organisations.

17. That, with the aim of facilitating the appointment process for the representatives of the aforementioned organisations, the person designated by the Human Rights Ombudsman convene and facilitate appointment processes of the respective sectors.

18. That the Programme’s Board of Directors should have the following functions:

a) Receive individual or collective applications from potential beneficiaries.

b) Assess, according to the circumstances of each case, whether the potential beneficiary has the status of victim or relative of a victim. Victims of cases contained in the case annexes of this

Report should be automatically qualified as victims without the need for another case study.

c) Assess the socio-economic status of potential beneficiaries previously identified as victims.

d) On the basis of the former, decide who the beneficiaries are.

e) Decide on the relevant reparatory measures.

Financing

19. That the State fund the National Reparation Programme by putting into effect the universally progressive tax reform established by the Peace Accords. To achieve this, a redistribution of social spending and a decrease in military spending would be appropriate. These measures should constitute the principal source of financing.

20. That, to the same end, the State solicit international co-operation from those countries which, during the internal armed confrontation, lent military and financial aid to the parties.

Period of operation

21. The National Reparation Programme should cover the time period necessary for it to achieve its objectives. This should not be less than ten years, considering the period determined for the presentation of the applications and the time necessary for allocating and delivering the benefits.

Forced disappearance

Given the extent of the crime of forced disappearance, developed as a repeated practise in Guatemala during the period of armed confrontation, and considering that forced disappearance not only causes those close to the detained person long-term distress due to the uncertainty of the fate of their loved one, but also generates a series of legal and administrative problems, it becomes vital to rectify these problems so that the suffering and complications occasioned by the disappearance are not prolonged. Therefore, so that it may be included in the National Reparation Programme, the CEH recommends:

Search for the disappeared

22. That the Government and the judiciary, in collaboration with civil society, initiate, as soon as possible, investigations regarding all known forced disappearances. All available legal and material resources should be utilised to clarify the whereabouts of the disappeared and, in the case of death, to deliver the remains to the relatives.

23. That the Guatemalan Army and the former Guatemalan National Revolutionary Unity provide whatever information they may have in relation to the disappearances of people that occurred during the period of internal armed confrontation.

Request: In relation to the search for the disappeared, the International Committee of the Red Cross (ICRC), an international body specialising in such matters, is requested to lend its advice and technical support to the various organs of the Guatemalan State responsible for these activities.

Specific recommendations concerning children who have been disappeared, illegally adopted or illegally separated from their families.

24. That the Government urgently activate the search for children who have been disappeared including, at the very least, the following measures:

a) Establishment of a National Commission for the Search for Disappeared Children whose aim should be to look for children who have been disappeared, illegally adopted or illegally separated from their parents and of documenting their disappearance.

Suggestion and request: That the said Commission be composed of the Human Rights Ombudsman and representatives from the national non-governmental organisations for human rights and children, with the advice and technical and financial support, as available, of UNICEF, the ICRC and international non-governmental organisations specialising in children’s issues, from whom the CEH solicits co-operation.

b) The promotion of legislative measures by which, at the request of interested parties, the courts and tribunals of the judiciary and the bodies charged with the protection of unaccompanied children, allow access to their files, facilitating the acquisition of information regarding the identity, ethnic origin, age, place of birth, current whereabouts and real name of the children given up for adoption or taken into care during the armed confrontation.

c) The implementation of a wide-reaching general information campaign in Spanish and all the native languages, across every region of the country and in refugee sites located in other countries, concerning the activities and measures connected with the search for these children.

25. That the media actively assist the initiatives in the search for disappeared children.

26. That the Government promote extraordinary legislative measures that, on the request of the adopted person or his/her relatives, allow for the review of adoptions brought about without the knowledge, or against the will, of the natural parents. The said review should always take place taking into consideration the views of the person who was adopted and in such a way as to promote cordial relations between the adoptive and natural families so that subsequent trauma for the adopted person is avoided.

Recognition of the legal status of absence due to forced disappearance

27. That the Government prepare and present a bill of law to the Congress of the Republic, by which the declaration of absence due to forced disappearance is recognised as a legal category with the purpose of validating for legal purposes filiation, succession, reparation, and other civil ends related to it.

Active policy of exhumation

The CEH believes that the exhumation of the remains of the victims of the armed confrontation and the location of clandestine and hidden cemeteries, wherever they are found to be, is in itself an act of justice and reparation and is an important step on the path to reconciliation. It is an act of justice because it constitutes part of the right to know the truth and it contributes to the knowledge of the whereabouts of the disappeared. It is an act of reparation because it dignifies the victims and because the right to bury the dead and to carry out ceremonies for them according to each culture is inherent in all human beings.

On this basis, and taking into consideration the high number of clandestine cemeteries referred to in this Report, as well as those still not publicly known, the CEH recommends:

28. That the Government prepare and develop an active policy of exhumation and urgently present to the Congress of the Republic legislation for a Law of Exhumation which establishes rapid and effective procedures for this and which takes into account the three following recommendations.

29. That the process of exhumation is carried out with full respect for the cultural values and dignity of the victims and their families, considering the process of exhumation not only as a judicial procedure, but above all as means for individual and collective reparation.

30. That the bodies and remains of the victims be handed over to their relatives for a dignified burial according to their particular culture.

31. That the work of the non-governmental organisations specialising in forensic anthropology and the investigation and identification of human remains be promoted and supported. The said specialist organisations should work in association with the Human Rights Ombudsman, whose office should serve as the depository for the relevant data.

Request: Given the economic cost entailed by such specialist activity, the financial support and technical advice of the international community is particularly requested.