CHAPTER VII

THE SITUATION OF REFUGEES AND DISPLACED PERSONS IN GUATEMALA
AND THEIR HUMAN RIGHTS

In Guatemala, the conflict has left one million citizens displaced from their homes and their land[75]; there are another 45,000 refugees in Mexico, under the protection of the United Nations High Commissioner for Refugees (UNHCR), and another 40,000 to 50,000 refugees not internationally recognized as such.

There are numerous allegations, even by government officials, that it is difficult for these people to exercise the human rights recognized in the American Convention, particularly the right to humane treatment (Article 5), the right to personal liberty (Article 7), the right to a fair trial (Article 8), freedom of movement and residence (Article 22), the right to property (Article 21), their right to participate in government, the right of assembly and of association (articles 15, 16 and 23).

To describe the situation accurately and to clarify the terminology, the displaced groups have been defined as follows:[76]

1. Displaced persons scattered within Guatemala: persons displaced by the violence generally scattered throughout the national territory in areas that are relatively far from the communities they left, principally the capital city and the southern coast; there are also those who left their village to live instead at the departmental seats. They hold on to their anonymity and it is difficult for support associations to reach them.

2. Displaced persons living in the Guatemalan mountains: People who, between 1980 and 1982 when there were so many politically motivated killings, took refuge in the mountains and jungles near their places of residence and for various reasons--fear being one--continue to live in isolated areas. Over the years, they have formed communities (unlike the scattered "displaced"). However, because they live outside the structures of state power, they are regarded by the State as "illegal". Up until 1983, during the period of massive displacements, there were groups of this type in El Quiché, Alta Verapaz, Chimaltenango and Huehuetenango, and to a lesser extent Baja Verapaz, Sololá, San Marcos and El Petén. Since 1986, because most have returned to their villages, these displaced people are thought to be almost exclusively in Alta Verapaz and El Quiché (the Ixil and Ixcan subregions) where there are some 23,000 such people.

3. Refugees (recognized): refugees documented and recognized by the UNHCR, most of them living in special settlements (camps) in the State of Chiapas in Mexico, cared for by the UNHCR Programme and national institutions.

4. Unrecognized refugees: persons who left the country under the same circumstances but did not reach any formal camp; "while they satisfy all the criteria to qualify as refugees, they have not been identified as such and hence are not formally acknowledged to have refugee status"[77] (CIREFCA, International Conference on Central American Refugees, 1989, p.40).

5. Internally displaced persons who have now returned: These are people who were relocated, either to their place of origin or elsewhere, and whom the State recognizes as "legal". The identity of those who sought shelter in the mountains, generally as a group, is known because they returned under some program or received institutional care. Displaced persons scattered throughout Guatemala in general return and relocate anonymously.

6. A repatriate: According to the UNHCR's concept of voluntary repatriation, when any refugee returns to his native country he becomes a repatriate. When repatriation is formal and protected, such people are cared for by special institutions and recognized as "repatriates under the program" unlike those who repatriate themselves by their own means, known as "nonprogram repatriates". From 1987 to November 1991, 7,000 repatriates returned under the program, apart from the 7,000 already repatriated outside the program. Since January 1993, several thousand refugees in Mexico began a new repatriation program . (See p.74)

REFUGEES

I. Background Information - a Description of the Situation

In the early eighties, because of the insurgent violence, military repression and the policy of "tierra arrasada" [leveled land], thousands of civilians died and many people, particularly indigenous people who had lived in the mountain regions for centuries, fled to Mexico. After more than ten years in exile, the 45,000 refugees recognized by the UNHCR in Mexico have decided to return to their homeland.[78]

The negotiations for return and repatriation

One of the paramount objectives of the Total Peace Plan drawn up by the Administration of President Serrano in early 1991 is to solve the problem of refugees, returnees and displaced persons. It established the CEAR, National Commission for Repatriates, Refugees and Displaced Persons, chaired by the Vice President; its other members are the Minister of Foreign Affairs, the Minister of National Defense, the Minister of Government, the Minister of Urban and Rural Development, the Secretary of Economic Planning and the Special Adviser for International Cooperation.

The Mediation Board started up in February 1991, its functions being to promote dialogue among the parties for a safe, dignified, organized and collective return of the refugees. The Board is composed of the Attorney Delegate for Human Rights, one bishop representing the Guatemalan Bishops' Conference, a member of the Guatemalan Human Rights Commission and the Chief of the UNHCR Mission in Guatemala.

In July 1991, at the First Conference of Groups Created in Response to the Repression and Impunity, held in Guatemala City, the Permanent Commissions of Representatives of Guatemalan Refugees in Mexico (CCPP) spelled out six conditions for a safe and dignified return:

a) Returning must be a voluntary, individual decision. The vast majority of the refugee population is demanding a collective and organized return.

b) Guarantees that refugees will be allowed to return to their lands to take possession of them. This does not mean that upon their return, refugees will begin to fight with fellow peasant farmers now occupying their lands.

c) Recognition of the refugees' rights to organize and associate freely.

d) The right to life, to humane treatment and community. In this regard, the refugees are demanding guarantees that this right will be respected by the Government, the Army and other authorities. Accordingly, it is absolutely essential that the civilian authorities in each municipality be the only parties charged with public order, as prescribed in articles 253 and 259 of the Constitution.

e) The Government is to allow national and international delegations, nongovernmental organizations and representatives of the Office of the United Nations High Commissioner for Refugees to accompany the refugees upon their return, and remain in the country thereafter so that they can check to ensure that these conditions are being observed.

f) The members of the CCPP and the returning refugees are to enjoy freedom of movement, both national and international.

On December 13, 1991, the President and the United Nations High Commission for Refugees signed a letter of understanding, based, inter alia, on the fact that "the refugees in Mexico, through their Permanent Commissions, had expressed their desire for a collectively planned and organized return and had presented the National Reconciliation Commission with a proposal spelling out six minimum conditions that must be met for their return."

That letter of understanding constitutes an agreement to observe those six minimum conditions; it also establishes the guidelines for the resettlement plans.

II. The agreements between the government of guatemala (represented by the National Commission for Repatriates, refugees and displaced persons, cear) and the Permanent Commissions (CCPP), october 8, 1992

Following the negotiations conducted during 1992 and with the assistance of the Mediation Board, more specific agreements were concluded on the conditions for the return and resettlement, and the guarantees of the returnees' human rights.

These agreements, concluded in October 1992, spell out the conditions for the return of the refugees in Mexico, after ten years in exile. These agreements and the attendant policies on repatriation of refugee peoples must be examined from the standpoint of human rights. These are Guatemalan citizens who were forced to leave their homeland because of the violence. They experienced enormous personal suffering and human and material loss. It is only natural that they should now want to return to their homeland, in the hope that their circumstances will enable them to leave the many years of deprivation behind them and carry on with their lives in their own world. All segments of the Guatemalan population and the international community have to look at this issue from a humanitarian and sociological standpoint, without any form of racial or political prejudice.

As a frame of reference, the agreements single out the American Convention on Human Rights and other important international instruments that concern basic rights in general and the rights of refugees in particular, and to which Guatemala is a State Party either by virtue of ratification or bilateral agreement.

The agreements consist of seven points, which are elaborated upon at length. They represent an important step in the quest for a real solution to the very serious problem of refugee peoples.

First, the agreements speak of the need for the return to be a voluntary decision, expressed by each refugee individually and confirmed by the UNHCR; they stipulate that the return is to be carried out in collective, organized fashion, and is to be done safely and with dignity. The agreements stipulate that the return is to be a gradual process, but carried out swiftly. It is to be coordinated by the Permanent Commissions, which are to act upon the refugees' requests. Working on the basis of the Plan of Operations that the Permanent Commissions present, the UNHCR, CEAR, COMAR and other groups involved will coordinate the return operations.

The second point of the Agreements, vitally important in dealing with the sociological problems that the return may create, concerns three matters: first, recognition of the returnees' right to freedom of association and organization. Here, the Government undertakes a fundamental commitment to respect, in accordance with the national and international standards in force for the country, the right of the returned people to practice their culture and to associate amongst themselves and organize themselves freely, to permit their full development and integration into Guatemalan society.

The agreements then make provision for a three-year exemption from military service; that three-year period could, if necessary, be extended in the case of those who return to the country. This very wise provision is essential to enable returnees to reorganize and reestablish themselves in Guatemala, and to minimize their fears of being recruited into the military in conditions for which they are certainly not prepared.

Finally, under the agreements the Guatemalan authorities are to recognize any studies that the refugees may have had an opportunity to pursue abroad, which will help them rejoin the country's job market.

The third point covered in the agreements is called "Returnee Escort". This and the seventh point, called "Mediation, monitoring, and verification", are essential if the return and subsequent settlement, adaptation and development of the thousands of people who are returning to their country, are to be protected by the necessary guarantees. As their titles clearly indicate, this will involve the participation of various bodies--national and international, governmental and nongovernmental--to monitor execution of the repatriation process from the outset, and include mechanisms to police and settle disputes or controversies that arise in carrying out the agreements. Doubtless, the active cooperation of all parties committed to the success of the agreements will be crucial to their effective implementation and will create a sense of trust among the returnees and among those who still remain abroad.

The fourth point addressed by the agreements is the question of freedom of movement within the country, the freedom to leave and enter its territory, both for returnees and for members of the Permanent Commissions. Observance of Article 22, paragraphs 1 to 5 of the American Convention on Human Rights is important here:

1. Every person lawfully in the territory of a State Party has the right to move about in it, and to reside in it subject to the provisions of the law.

2. Every person has the right to leave any country freely, including his own.

3. The exercise of the foregoing rights may be restricted only pursuant to a law to the extent necessary in a democratic society to prevent crime or to protect national security, public safety, public order, public morals, public health, or the rights or freedom of others.

4. The exercise of the rights recognized in paragraph 1 may also be restricted by law in designated zones for reasons of public interest.

5. No one can be expelled from the territory of the State of which he is a national or be deprived of the right to enter it.

The fifth issue concerns the right to life and personal and community integrity. It is a logical consequence of the need to give returnees guarantees; particular emphasis must be given to verifying the Guatemalan Government's observance of this commitment, as regards respect for the way of life, customs, traditions, and social organization of the people, a vital part of their readaptation to the country.

The sixth point, "Access to land", was discussed when this problem was examined earlier, so that it is mentioned here merely to show where it figures in the Agreements.

The Commission is mindful of the efforts made by the refugee organizations, the Mediation Board and the Government to be able to arrive at these agreements and how important it is that they be taken seriously to help guarantee the refugees' human rights and to begin to heal the deep wounds in Guatemalan society.

III. Specific problems caused by the situation of refugee and displaced persons

1. The need to create the conditions that enable them to return

It is undoubtedly true that the Agreements signed in October 1992 will only be carried out if all Guatemalan State institutions discharge their role in guaranteeing the refugees' rights to the fullest. After a history of armed conflict, massive human rights violations of the Guatemalan people, of deep resentments and public opinion campaigns by various sectors that deepened the divisions within the citizenry and even existing violence, it is possible that the refugees themselves, numerous national and international organizations, and even some sectors of the Government might view the return and resettlement of the refugees with fear and anxiety.

In these ten years, de facto situations have materialized, especially as regards possession of lands and control of public order (more specifically the militarization of internal security and the activities of the self-defense patrols and other paramilitary groups) that could make peaceful resettlement difficult.

2. The land question

One of the most serious problems that should be a priority concern for the authorities insofar as the return of the refugees is concerned is doubtless the question of allocating land and repopulating areas where the armed conflict is still underway.

On the issue of property in general, the American Convention on Human Rights prescribes the following:

Article 21. Right to property.

1. Everyone has the right to the use and enjoyment of his property. The law may subordinate such use and enjoyment in the interest of society.

2. No one shall be deprived of his property except upon payment of just compensation, for reasons of public utility or social interest, and in the cases and according to the forms established by law.

3. Usury and any other form of exploitation of man by man shall be prohibited by law.

Regions such as Ixcán in the northern sector of El Quiché, which was the scene of terrible violence and whose inhabitants were displaced, is now populated by more than 60,000 new people. It is essential that directives and general and specific policies for cases such as this one be established. Various formulas have been suggested, and some have been attempted in analogous situations.

For example, in Mayalán and Tercer Pueblo, communities which had been abandoned, those who returned did so with the permission of and escorted by military forces; in Los Angeles and Cuarto Pueblo in Mayalán, the people had to be relocated in new places, since resettling them in their original communities was considered inadvisable.

Returning to Ixcán where a cooperative was established back in the 1970s, and AID conducted programs to distribute land, the problem is particularly complex: in some cases, the National Agrarian Transformation Institute (INTA) recognized the occupants of the area as the owners and required that they make the payments on their land parcels. But the situation is different in the case of cooperatives, since INTA has no jurisdiction there; previous property owners, both within the country and in Mexico, are claiming title to the lands.

In December 1992, it was reported that the lands to which the first group of returnees would go as a result of the October Agreements, were not ready for them. In fact, according to Ricardo Curts, one of the representatives of the CCPP negotiating with the Government, there was already a sales contract on the Nentón farms in Huehuetenango, although the contract had not been consummated. It was on those farms (Miramar, La Fortuna, El Olvido and La Libertad) that the first 226 families to arrive were to settle; the remaining 602 families were to go to the sector known as Polígono Catorce, in the Ixcán region of El Quiché.

The main problem is the lack of funds to purchase the lands; it was not until December 3, 1992, that the CCPP and FONAPAZ (the agency in charge of financing) signed the loan regulations.

CEAR, for its part, pointed out that the first movement of returnees would provide an opportunity to evaluate the steps that must be followed in the overall return and estimated that as many as 15,000 people could be repatriated by the end of 1993.

However, despite negotiations by members of the cooperatives in Ixcá and efforts to solve the problem, and even though there is enough land for a considerable number of people, the area continues to be the scene of clashes and of strategic interest to the parties in conflict which makes a reliable solution for those who resettle very difficult.

In Nentón in early January 1993, one farm (La Central) was purchased and a contract promising to buy another (La Fortuna, also known as Canta Rana) was signed. In all, these two properties can accommodate 200 families.

The sixth issue addressed in the Agreements of October 8, concerns the question of property. The issues it poses can be summarized as follows:

Legal Situation/Planned Measures

Hypothesis

Returnees with temporary or final deeds issued by INTA or some other state agency:

-CCPP will present to CEAR a photocopy of the deed 60 days before the return.

-CEAR will forward those papers to INTA, which shall study them and verify their authenticity within 15 to 30 days.

1. If legal title is in order and the property is not occupied, CEAR will, within three days of receiving INTA's report, notify the returnee that he/she may occupy the property upon his/her return.

2. If the property title is in order but the property is presently occupied, the Government will negotiate with the occupant for the latter to abandon that property within 30 days. If said occupant does not abandon the property, the Government will advise the returnee of the legal remedies that he/she may attempt, with a copy to the UNHCR. If the legal action is very costly (according to the verifying body), the returnee shall waive his right and the Government shall give him some other property financed through FONAPAZ or FONATIERRA.

3. If the legal situation has changed and there is a new occupant with a deed, but the statute of limitations has not expired, the measures stipulated under the preceding hypothesis shall be attempted. If the statute of limitations has expired, the Government shall provide some other property, financed through FONAPAZ or FONATIERRA.

Returnees with public deeds:

-The CCPP shall present a copy of the deed 60 days before the planned return.

-The CEAR shall immediately examine the records and conduct the fieldwork to determine the status of the property

1. If the search of the legal records and the fieldwork establish that everything is in order, the returnees will be advised that they may return immediately.

2. If the property is occupied, the Government will negotiate with the occupant to have the latter abandon the property within 30 days. If the occupant does not abandon the property, the Government will advise the returnee of the legal remedy available to him, and a copy of that notification will be provided to the UNHCR. If the legal action is very costly (according to the verifying agency), the returnee cede his/her property to the Nation and the Government shall provide the returnee with another piece of property, financed through FONAPAZ or FONATIERRA.

Legal situation/Planned measures

Hypothesis

Landless adult returnees:

-Through FONAPAZ, the Government will award loans, on easy terms, for the direct purchase of land. The CCPP and FONAPAZ will prepare the regulations spelling out the terms for the loans. Through INTA, properties that FONATIERRA has or purchases will be made available.

1. FONAPAZ loans can be made through the organized beneficiaries themselves and repayments will go toward investments that will help the communities.

2. The returnees and the NGOs that they designate shall prepare the production plans in settlement areas.

3. The State will supply the financial resources and the technical-agricultural services needed to work the property.

4. The parties shall conduct an on-site identification of the farms before purchase.

5. Properties to be returned must have their boundaries demarcated and must be registered.

6. The minimum size shall be established by the parties as a function of the quality, productive potential and location of the property, and with a view to enabling the family to earn a decent living and repay the loan.

7. Through FONAPAZ, the Government will make funds available to the returnees to be used to purchase the properties within a period of no more than 60 days from the time the returnees agree to purchase the site.

8. In cases where the property right cannot be restored, the Credit Regulations shall provide that the current value of the property shall be counted toward repayment of the loan received by the returnee.

Returnees who are members of cooperatives:

-The Government shall respect the property right in the case of the lands belonging to cooperatives, under the system of private ownership and other laws on the subject.

1. If the returnee is a member of a cooperative and his/her land is unoccupied, he/she may take possession of the land in accordance with the bylaws of the cooperative.

2. If the land is occupied by someone who is not a member of the cooperative, the Government, through INCOOP, shall work with the cooperative to get the tenant removed.

Legal Situation/Planned Measures

Hypothesis

3. If the land is occupied by members or the management council refuses to readmit the cooperative member or to allow use of his/her farm plot and housing, the Government will facilitate dialogue among the members to settle the problem. If the cooperative does not have sufficient land, the Government will make it possible for the cooperative to purchase new land through FONAPAZ and FONATIERRA.

4. If the returned member resigns his/her membership, the Government shall supply said person with other land, financed through FONAPAZ or FONATIERRA.

Returnees who had possession of municipal properties:

-60 days before their return, the CCPP will furnish the CEAR with information on the properties that the refugees had once held, indicating the municipality that granted possession, the date, the size of the property and its location.

-With that information, an attempt will be made to recover the property for the returnee. CEAR is to notify the returnee of the information received within 15 to 30 days of its receipt.

1. If the property is available, authorization will be requested of the office of the mayor or the municipal government and the necessary formalities will be expedited to enable the returnee to take immediate possession of the property.

2. If the property is not recovered, the Government will give the individual concerned another piece of property financed through FONAPAZ or FONATIERRA.

Recognition and issuance of property titles:

-The Government recognizes and respects the property titles held by the returnees at the time they left the country.

1.If the returnees do not have evidence of their property titles or deeds, their claims shall be established by checking the files of INTA or other municipal and state agencies, as well as the certifications of property records.

2. If national properties are involved, the Government, through INTA, shall issue the property titles within no more than 6 months from the completion of the 'quality evaluation' docket once the interested party has proven his right to be a beneficiary, to be in full possession of his/her parcel and has made partial payment. If the land was financed through FONAPAZ, property ownership is immediate.

Recent evolution of events through January 1993. Recommendations.

In December 1992, the Permanent Commissions made public their determination to begin the repatriation January 13, 1993. Eight thousand refugees expressed their interest in immediate repatriation. UNHCR and the C.E.A.R.(in Guatemala) and COMAR (in México) were to supervise the transfer and provide the necessary health, security and transportation services and facilities for the resettlement. Their destination would be provisional camps in the "Poligono 14" region until the assignment of land and construction of permanent quarters. The Government accepted the request from U.N. expert Christian Tomuschat, to keep the military detachment away from the resettlement zone in order to facilitate good relations between the returnees and the military.

The initial tension between the distinct parties and the worries of attacks were dissipating as the return of the first contingent of 2500 persons was carried out and new practical problems of sanitation, provision of food and transportation were being resolved step by step. As they arrived in Guatemala City, they conducted a rally and celebrated a Mass, in which Rigoberta Menchu, winner of the Nobel Peace Prize, among others, welcomed them. The Permanent Commissions anticipate the return of another 2500 refugees in the months of January and February,.

The Commission considers that an occurrence of such importance as the return to their country of a refugee population should be a reason for special support on the part of the Government and all the sectors of society, and should not be distorted in a way that would cause a negative impact upon the human rights situation of that population.

The Commission views with satisfaction the return to their homeland of the refugees and hopes that their rights and the agreements reached between the Government and the refugees are rigorously respected. In this sense the Commission calls the attention of the Government to a) the necessity of providing all the documents of identification that pertain to them as citizens; b) the registration and certification as nationals of the children born during their tenure as refugees, c) the effective fulfillment of the promise by the Government to pospone for three years the completion of military service for those concerned, and d) the Commission also hopes that the growing climate of "detente" among the parties involved will be consolidated, and the agents of the State avoid taking any actions that may injure their physical, psychological and moral integrity, or that would discriminate against them.

[75] Pastoral letter of the Episcopal Conference of Guatemala on the return of the Refugees to their homeland July 1st 1992. The Government recognizes the existense in 1991 of approximately 150, located for the most part in the major cities and perify in rural areas and affected by violence. Cirefca. 2nd International Conference on Refugees. COPHREDEH. El Salvador April 6-8, 1992.

[76] AVANCSO (Association for the Advancement of Social Sciences) "Where the future lies: reassimilating returned persons into the community" Cuadernos de Investigación No. 8.

[77] (CIREFCA) Conferencia Internacional sobre Refugiados Centroamericanos, 1989, p.40). Ver Informe sobre DDHH en Guatemala, CIDH, 1983.

[78] The Commission has received information, confirmed by the UNHCR, and the COMAR, that 70 Guatemalan families from the Cuarto Pueblo, Ixcan, El Quiché, sought refuge in Chiapas on November 27 and 28, 1992, fleeing from alleged bombings of their towns by the Army. Update 24/92 p. 2.