Thursday, July 31, 2014

Court rules that Guatemala must recognize results of community consultations

In an historic resolution, a Guatemalan Appeals Court ruled last week that the government must take into account the right to free, prior and informed consent when granting mining licenses on the lands of indigenous communities.

The ruling came in response to a legal action presented by the Sipakapense People's Council in March 2014, arguing that the Ministry of Energy and Mines (MEM) failed to consider the results of a 2005 community consultation before granting the "Los Chocoyos" mining license to Entre Mares de Guatemala S.A., a subsidiary of Canadian mining company Goldcorp Inc. The 2005 referendum in Sipakapa overwhelming rejected mega-development projects on their territories, including mining, by a 99% margin.

The Sipakapense People's Council at a press conference after the Constitutional
Court ruled in their favor.
Photo: Consejo del Pueblo Maya


In their ruling, the court cited Convention 169 of the International Labor Organization (ILO 169), which grants indigenous communities the right of consultation before mega-development projects are constructed on their traditional lands. This international convention has been a vital resource for communities in Guatemala organizing in defense of their territories, especially when domestic law and the Guatemalan government has failed to provide legal pathways to reclaim rights to life and territory.

Community members commemorate the 8th
anniversary of the community consultation in Sipakapa, on June 18 2013.
Photo: SaraGuate

Since Guatemala ratified ILO 169 in 1996, legal uncertainty regarding the implementation of rights outlined in the international accord has left its application in a state of ambiguity. In previous rulings, the Constitutional Court established the legality of community consultations, however ruled that due to a lack of regulation regarding their implementation, the results do not have to be respected by state institutions - a tenuous position, as laws regarding the right to community referendum are outlined at the municipal level. This most recent ruling appears to strengthen the domestic standing of ILO 169 by requiring the government to recognize the results of community referendum when considering the allocation of mining licenses, but again stops short of making the results legally binding.

None the less, the court's latest decision represents an important victory for communities organizing in defense of life and territory, providing them with an important legal precedent that can be used in future court cases to compel the government to recognize the collective rights of indigenous peoples as well as their traditional forms of organization and representation.

The hillsides of Sipakapa, in north-western Guatemala.
Photo: James Rodríguez, mimundo.org



In accordance with the Constitutional Court's ruling, the results of the 2005 referendum will be handed over to MEM to be taken into account in their re-evaluation of the Los Chocoyos mining license, a process which the Ministry has six months to complete. The court has additionally ordered that MEM factor Guatemala's obligations as a signatory to ILO 169 into their consideration.

According to the Sipakapense People's Council, the implications of these rulings can only mean that the Los Chocoyos mining license is illegal and void, and as such all mining activity on Sipakapense territory must be immediately halted. To read the statement released by the Sipakapenses People's Council regarding the Constitutional Court's ruling, click here (in Spanish).

Monday, July 28, 2014

Witnesses give pre-trial testimony for Military Diary case

On July 3 and 4, four witnesses presented their testimony to the High Risk Court "B" in anticipation of the upcoming trial in the Military Diary case. Although a trial date has yet to be set, the court allowed the elderly witnesses to give their testimony, which will be admitted as evidence when procedural issues, currently impeding the start of the trial, are resolved.

Witnesses in the Military Diary case provide their testimony to a Guatemalan court.
Photo: elPeriódico

The Military Diary was anonymously withdrawn from the Guatemalan Military Archives and handed over to the U.S. based The National Security Archive, in 1999. The document lists the names of 183 people who were captured and forcibly disappeared during the term of dictator Oscar Humberto Mejía Victores, from 1983-1985. Alongside each name is a picture of the victim and details of their disappearance, including the date and location of their kidnapping by state security forces, as well as personal information about the victim. The majority of the entries are classified as "code 300", which was terminology used by the military to express that the victim had been executed.

The 54 page document has been authenticated by both the National Security Archive and the Guatemalan government, and provides an in-depth look into the systematic human rights abuses committed by the state against the civilian population. The document demonstrates the government's use of forced disappearance, torture and extra-judicial killings as integral strategies in its counter-insurgency effort.

A page from the Military Diary.
Photo: Centro de Medios Independientes
The details outlined in the Military Diary was corroborated by the women who provided their testimonies earlier this month. One of the witnesses, Aura Elena Farfán, president of the Association of the Family Members of the Detained and Disappeared of Guatemala (FAMDEGUA), recounted the forced disappearance of her brother, Rubén Amílcar Farfán, which occurred on May 15, 1984. At the time of his disappearance, Rubén was a student at the San Carlos University in Guatemala City.

Another witness, 77 year old Antonia Chiquil Aguilar, testified to the disappearance of her son, Manuel Ismael Salanic Chiguil. According to Aguilar, on the night of February 14, 1984, unidentifiable men dressed in blue and green violently entered her house in Guatemala City. Aguilar was forced to watch as the men repeatedly hit her son and subjected him to electric shocks before kidnapping him. Manuel was never to be seen again.

Antonia Chiquil Aguilar relates her testimony to the court.
Photo: Centro de Medios Independientes

Pushing the search for justice in national courts forward is the 2012 ruling by the Inter-American Court of Human Rights, which states that the Guatemalan government has the responsibility to conduct a full investigation into the forced disappearances listed in the Diary and prosecute those responsible.

NISGUA, through the Guatemalan Accompaniment Program and ACOGUATE, provides international human rights accompaniment to FAMDEGUA.