消除种族歧视委员会审议危地马拉的报告（部分翻译）

消除种族歧视委员会

2015年4月30日

消除种族歧视委员会今天结束了对危地马拉关于如何落实《消除一切形式种族歧视国际公约》规定的第十四次至第十五次合并定期报告的审议。

危地马拉负责协调人权执行政策的总统委员会成员雨果·马丁内斯（Hugo Martinez）代表总统委员会主席安东尼奥·阿雷纳莱斯（Antonio Arenales）介绍报告时表示，长达36年之久的国内武装冲突并不是一场种族间冲突，土著人民的遭遇也并非种族灭绝。土著人民遭到最严重的影响和人权侵犯，政府对此已负起责任并向受害者作出赔偿。

同时介绍报告的司法机构/最高法院院长约苏伊·巴基阿斯（Josue Baquiax）表示，危地马拉已正式承认其土著人民的文化身份权利，并承诺防止一切形式的歧视。危地马拉正从一个种族主义、排外、文化单一的中央集权国家转型为一个民主、多文化、包容和参与性的国家。这种变化的实现并非魔术：仅仅是定罪不能达到效果，教育才是改变文化和消除不平等现象的关键。

危地马拉消除对土著人民歧视和种族主义总统协调员玛利亚·古铁雷斯（Maria Gutierrez）在介绍报告时指出了该国在政治、经济、社会和发展方面存在的深刻不平等现象，这也解释了歧视和排斥现象为何在土著地区盛行。该国创建了土著人民和文化间办事处，这是一个以有关土著人民身份和权利的协定为基础为政策改革制订计划的协商性机构，另外还成立了一个负责分析对人权维护者的袭击的部门。

委员会专家指出，危地马拉的挑战是克服三十余年残忍而血腥的国内武装冲突历史，土著人民与妇女在此期间遭到严重人权侵犯。他们对该国持续的不安全与暴力现象，安全部队常常对土著社群成员过度使用武力，以及在打击对土著群体歧视方面发挥重要作用的人权维护者遭到袭击等问题表示关切。专家们询问了事先协商原则的应用问题，并指出在此方面缺乏监管是阻碍与土著社区开展有效协商的一大障碍，其中便包括水电和采矿等项目。根深蒂固的不平等现象仍然存在，必须采取措施确保占该国人口60%以上的土著人民适当参政。该国没有确保土著社群在土地方面集体权利的法律，而土著人民的教育问题仍是导致他们面临的许多其他不平等现象的严重问题。

担任国别报告员的委员会专家迪利普·拉希里（Dilip Lahiri）在总结发言中表示，由于危地马拉仍有一些亟需解决的问题，委员会的结论性建议将会直截了当。

古铁雷斯女士在总结发言中表示，危地马拉将会继续打击种族歧视，该国已落实之前收到的一些建议便是明证。

担任国别报告员的委员会专家迪利普·拉希里在总结发言中表示，由于危地马拉仍有一些亟需解决的问题，委员会的结论性建议将会直截了当。

阿雷纳莱斯先生在总结发言中对此次对话的开展方式表示满意，并表示将以书面形式传达尚未落实的信息。

危地马拉代表团包括来自负责协调人权执行政策的总统委员会，司法机构/最高法院，消除对土著人民歧视和种族主义总统协调办公室，土著妇女监察员，国家对话系统总统委员会，国家统计局，外交部，内政部，土地登记局以及危地马拉常驻联合国日内瓦办事处的代表。

委员会将于今天下午3点再次召开公开会议，届时将开始审议波斯尼亚与黑塞哥维那的第九次至第十一次合并定期报告（CERD/C/BIH/9-11）。

报告

点击以下链接阅读危地马拉第十四次至第十五次合并定期报告：CERD/C/GTM/14-15。

Presentation of the Report

HUGO MARTINEZ, Presidential Commission for Coordinating Executive Policy on Human Rights, introduced the report on behalf of ANTONIO ARENALES, President of the Presidential Commission, saying that the Peace Accords had put an end to 36 year of internal armed conflict and allowed Guatemala to establish itself as a State which guaranteed fundamental human rights and equality to its citizens. However, Guatemala was still overcoming historic causes of the suffering of rural and indigenous populations. Last year, the second Constitutional reform had been presented, which included the reform of the electoral system and the official recognition of the indigenous peoples; this proposal was still awaiting the approval of the Congress and the popular consultation. In the 193 years of its independence, Guatemala had made significant achievements in the enjoyment of economic, social and cultural rights through the creation of political institutions which eliminated legal inequalities and discrimination. Still, there was the need to address the structural causes of rural poverty and fully comply with the provisions of the Convention on the Elimination of All Forms of Discrimination. There was only one national territory, and the Constitution did not recognize indigenous territories; national territory included soil, subsoil and natural resources. This was a political and legal issue with historical reasons, for which Guatemala sought solutions. The internal armed conflict which the country had suffered for years had not been an inter-ethnic conflict, but one which had occurred on the margins of the Cold War, and what had happened with the indigenous peoples had not represented genocide. Indigenous peoples had been the most affected and had suffered severe human rights violations for which the Government had accepted responsibility and paid out compensation to victims. Currently, the laws and regulations on mining and hydro projects were being developed and the consultations were ongoing with the population. The Government needed to ensure that natural resources served the benefit of the population as a whole.

JOSUE BAQUIAX, President of the Judicial Body/Supreme Court of Justice, also introducing the report, said that Guatemala had formally recognized the right to cultural identity of its indigenous peoples and had undertaken to prevent all forms of discrimination. The Convention must be used as a framework for reference and a starting point for the creation of principles; prohibition of discrimination had been born as a consequence of the human rights to equality and non-discrimination. Guatemala was in transit from being a racist, exclusive, mono-cultural and centralized State to a democratic, multicultural, inclusive and participative one. There were no magic formulas to achieve this: criminalization alone could not achieve results, education was key for cultural change and the eradication of inequality.

MARIA GUTIERREZ, Presidential Coordinator against Discrimination and Racism against Indigenous Peoples of Guatemala, also introducing the report, said that Guatemala was a nation with profound political, economic, social and development inequalities, which explained the deep inequality which prevailed in indigenous areas as a result of discrimination and exclusion. The Government had put in place special measures to improve the participation and representation of indigenous peoples in political and public life, including in the judiciary and legislation. The Office for Indigenous Peoples and Interculturality had been created as a consultative body which formulated proposals for policy reform, based on the Agreement on the Identity and Rights of the Indigenous Peoples, and a unit was in place which was in charge of the analysis of attacks on human rights defenders.

Questions by the Country Rapporteur

DILIP LAHIRI, Committee Expert acting as Country Rapporteur, noted the remarkable cultural and linguistic diversity of Guatemala, and the challenge was to overcome the history of brutal and bloody internal armed conflict that had lasted for over three decades and that had seen gross human rights abuses against indigenous peoples and women. The 1996 peace accords had recognized that the conflict had its roots in the political and economic exclusion of large portions of the population, an exclusion clearly linked to racial discrimination against the indigenous. The United Nations Commission for Historical Clarification had estimated in 1999 that the internal conflict had claimed more than 200,000 victims, and the wounds of that time had not been reconciled. Over the past decade, Guatemala had continued to suffer from a situation of personal insecurity and violence, as a boom in drug-related crime threatened political stability, while deaths due to excessive use of force by security personnel still occurred and were often perpetuated against members of indigenous communities. Attacks on human rights defenders who played a valuable role in fighting to end discrimination against indigenous groups continued to be a major concern. In some cases, defenders had been killed in relation to conflict over national resources that often pit indigenous peoples against the State.

The country Rapporteur recognized the positive steps taken in Guatemala, including the creation of a Human Rights Directorate in the Ministry of Foreign Affairs, training of public officials on issues of racism and discrimination, combatting racial prejudice in the media, setting up of a programme to improve health and overall development of groups with special needs living in extreme poverty, and the facilitation of conflict over the land. There were areas of concern that remained. The Presidential Commission on Discrimination and Racism against Indigenous Peoples in Guatemala, an important body for disseminating and implementing policies against racism, had seen a sharp budget reduction in 2014. The Congress should take action to amend laws to bring them in line with the Convention on the Elimination of All Forms of Racial Discrimination and should recognize the competence of the Committee on the Elimination of Racial Discrimination to enable it to directly receive communications from concerned individuals in Guatemala on issues of discrimination. Education of indigenous communities remained a serious issue which drove many of the other inequalities that indigenous peoples faced. Guatemala must acknowledge the responsibility of the military for violence and killing during the conflict, and transparency in this process was vital; national security grounds for rejecting the release of information contained in the military archives should be defined by law.

Questions by Country Experts

A Committee Expert commended Guatemala for its role and support in the preparation of the United Nations Declaration on the Rights of Indigenous Peoples and noted the challenges it was facing in addressing racial discrimination in the country. The lack of regulation might be a barrier to the application of the principle of prior consultation and the delegation was asked to provide information on the consultations undertaken with indigenous peoples on specific mining and hydro-electricity projects. What was the status of the special indigenous jurisdiction in the country? The indigenous people made up more than 60 per cent of the population, and yet only 23 indigenous persons were deputies in the Congress; what was the situation with political associations in the country?

Experts asked the delegation to inform the Committee about the status of the draft bill recognizing the competence of this Committee, which would enable it to receive communications from individuals; the status of the Totonicapán incident in which eight indigenous persons had been killed; and whether special measures were being undertaken to rectify the disproportionate levels of poverty and malnutrition among indigenous peoples. Many bills were pending before the Congress which addressed major issues of concern to this Committee, and of interest to indigenous peoples; what were the reasons that prevented the adoption of those laws and why had no progress been made for a very long time? Guatemala did not recognize indigenous lands and Experts wondered how this reconciled with the provisions of International Labour Organization Convention 169.

Guatemala was a country in transition in which deep rooted inequalities remained, said Committee Experts, noting that measures must be taken to ensure proper political participation of indigenous peoples who represented a significant proportion of the population. There was no law guaranteeing the collective rights of indigenous communities over the land and the mechanism for the protection of the land was not in place. What steps were being taken to ensure that indigenous leaders were not criminalized and the role of civil society to hold the mirror could be executed in an open and participatory manner? How did the Government ensure that there was no politicization in the election and appointment of national development councils?

The poverty map of the country coincided with areas of indigenous communities, which was evidence of their poverty and neglect, said an Expert, and asked the delegation how it planned to implement its excellent agenda so that the progress in the situation of indigenous peoples would be evident at the next review of Guatemala.

Replies by the Delegation

Responding to the questions and comments made by the Committee Experts, the head of the delegation expressed his surprise at the statement by the country Rapporteur in which he accused the Government of not being objective and put forward his description of the armed conflict. The armed conflict had not come about as an inter-ethnic conflict, but was a part of the Cold War; genocide had not occurred and no one had been accused or condemned for acts of genocide. The validity and the scope of the amnesty granted by the peace accords was still to be decided by the courts, but it was important to say that the Inter-American Court of Human Rights had agreed on the validity of amnesty when it was necessary to achieve peace. The trial against General Ríos Montt had been annulled by the Constitutional Court because of procedural mistakes; the charges against him, which at first involved crimes against humanity and genocide, would be redefined during the retrial.

Land, soil and subsoil were public goods and did not belong to any individual or people. Judges had handed down rulings on the right to soil and restitution in cases in which land could not be returned. Subsoil and natural resources were goods in the public domain and it must be born in mind that the State granted concessions for the use of those goods which impacted those living on the land. The electoral system was such that led to lack of representation and the Constitutional reform put forward by the Government sought a change in this system to ensure legitimate and appropriate representation of indigenous peoples. An inter-agency body in charge of the protection of human rights defenders and journalists had been meeting weekly; it had proposed a protocol to set up rapid response under the Directorate for the Protection of Persons of the Ministry of the Interior.

The Agreement on Identity and Rights of Indigenous Peoples contained five specific Constitutional reforms, including the recognition of the Maya languages and the recognition of indigenous justice; reforms were awaiting approval by Congress, and meanwhile access to justice was facilitated by the use of language and legal interpreters. The current Constitution did not recognize indigenous peoples as communities. The Totonicapán incident was the subject of a criminal investigation and the Government had decided to assist the victims and had provided individual compensation to the tune of almost one million US dollars.

To enable access of indigenous peoples to the ordinary justice system, there were 200 interpreters covering 23 Mayan languages, and it was hoped that further specialization in legal translation in Mayan, English and Spanish would be improved. The human rights of indigenous peoples were explicitly recognized and judges made extensive application of relevant articles of the Constitution granting indivisibility and comprehensive application of human rights and the harmonization of the national legal order and the indigenous system. In-depth discussion was ongoing about the Constitutional Court and the right to self-determination and self-administration of indigenous peoples. Between 2006 and 2014, a total of 96 cases of discrimination had been lodged with the criminal courts.

Explaining the complex reality of Guatemala was not an easy task. Change could only occur through a society-based process and non-violence. The internal armed conflict had ended 18 years ago, and this was a short period in the history of a State; Guatemala had made a lot of progress during this time. The conflict occurred in the east of the country, while indigenous peoples in the north and west were not involved. Guatemala had ratified International Labour Organization Convention 169 and the Constitutional Court had, on several occasions, urged Congress to legislate in this connection. The Cabinet had set up an inter-institutional team to analyse standards and processes for consultation and had decided to conduct a consultation on the rules governing consultation to be introduced; several indigenous groups had already been consulted in this regard. The 80 community consultations that Experts referred to could not be seen in the context of the implementation of International Labour Organization Convention 169. The Government was aware of the implications and advantages of applying the procedures, particularly in reducing social tensions, and intended to produce as soon as possible a protocol on consultation; it was true that those must be accompanied by legislative measures too. The Government was aware of the conflict on the mining for minerals, and had consulted with several groups and proposed a moratorium for two years to allow time for the preparation of a draft bill on mining in Congress.

The majority of political parties had stood in the way of the adoption of the laws to increase political representation of indigenous peoples and there was a need to provide funding for combatting discrimination against indigenous peoples. The State was promoting policies to ensure respect for intellectual property and protect the traditional knowledge of indigenous peoples. A policy was being developed on indigenous midwives, while a number of Ministries were introducing traditional knowledge into the efforts to protect the environment and biodiversity. In order to mark the International Decade of People of African Descent, the Government would set up an initiative to pass the law to explicitly recognize people of African descent and to undertake a census to ascertain how many lived in Guatemala.

Several instruments were in place to combat hunger, malnutrition and disease. The Law on Food Security and Nutritional Safety guaranteed the right of all to appropriate, adequate and sufficient food, and the Nutrition Pact aimed to significantly reduce by 24 per cent the number of children suffering malnutrition over the next four years; action would be also taken to reduce the number of deaths due to chronic malnutrition, and reduce incidence of malnutrition among children under the age of five, pregnant and breastfeeding women. Indigenous peoples would most benefit from those programmes.

The Division for the Protection of Persons of the Ministry of Interior provided protection to human rights defenders who suffered threats or attacks and implemented a number of security functions, including protecting persons, perimeters and facilities. The Law on Civilian Police must act in absolute political impartiality and neutrality and without discrimination or any ground; training in racial discrimination was provided to those working in the police force, including through the curriculum in the academy which contained a module on the rights if indigenous peoples.

The Constitution recognized the tenancy on the land by individuals, including by indigenous peoples, while the institution for land registration had been created under the 1996 peace accords to contribute to the problem of legal uncertainty of the use of land. The Land Registry Act had just become operational and the plan for indigenous participation and the environmental plan were in place. The regulation of communal land aimed to establish a procedure for the recognition and use of the communal land; in the case of indigenous communities, it was vital that the following criteria were met: that the indigenous peoples owned the land, that the land was historically relevant, and that the community had the system of administration of the land. In 2014, the first three communal lands had been declared and more that 200 archaeological sites had been declared where Mayan ceremonies could take place.

Questions by the Committee Experts

With regard to ancestral land, there was a feeling of legal vacuum and insecurity that created social tensions and curtailed the freedoms of certain groups. Guatemala should look into the situation in other Latin American States that had resolved the issue successfully. More needed to be done to find a solution to the non-application of the principle of prior consultation with indigenous population, including on the questions relating to the use of soil and subsoil. The consent of indigenous peoples to all projects that affected them and their communities was indispensable and the consultations must be an efficient way of identifying the needs of stakeholders. There was no law prohibiting racial-based violence and this void must be filled.

The bill establishing uninominal districts would be a welcome change, but an Expert noted that many bills had been stagnating for long periods and had not been enacted within a reasonable period of time. Many of the solutions to the concerns raised by the Committee had been incorporated into these bills, and would resolve the issues if they were translated into the law, which was not happening. It was a vicious circle.

Responses by the Delegation

The situation was very clear that there was no dual intention with the change of stance concerning genocide. There had been no genocide in Guatemala. Many indigenous peoples had died because they were part of the insurgency and not because they were a part of an ethnic group which was the subject of extermination. It was agreed that there would be an amnesty, a report on historical events, and compensation for the victims. Guatemala did not deny the facts that had occurred. With regard to human rights defenders, Guatemala had never criminalized their activities nor had it detained defenders.

Concerning indigenous justice, it was true that before the passing of the Criminal Code, the access to justice for indigenous peoples had been delayed. The Criminal Code set out the obligation of courts to see any person, regardless of their ethnicity, race or origin, and must do so in their own language. There had been recognition in the Constitution that customary law prevailed over the State law. Five community courts had been set up and they tried individuals in their own language and according to their own customs and traditions. The legislature had not given due attention to the laws addressing indigenous concern, but this would hopefully change with the election of new legislators in 2015.

The National Institute of Statistics had two major initiatives this year; first was related to the population and housing census – four pilot censuses would be conducted this year in order to improve methodology and tools for the pending national census. The second initiative regarded the improvement of terminology used in the self-identification of people during the census.

Legislation had been enacted with regard to ancestral land, especially the 2009 Governmental agreement which aimed to recognize communal land. Each municipality had social support offices with multi-lingual staff and work had been done with various institutions on registration of poverty, units for protected areas, and agrarian and forestry offices.

In a series of follow-up questions, Committee Experts asked about the deployment of the judicial apparatus on the ground and whether indigenous people had judicial institutions in the areas where they lived. They noted that the mining operations, even those exploiting resources in the subsoil, interrupted the lives of the people on the land, and stressed that the law on consultation must be adopted as soon as possible to ensure that people could express their views. The Experts appealed to the Government to correct gender disparities.

Replying, the delegation said that the indigenous legal system was in existence and had functioned even before Guatemala became a State. The system had territorial competence and indigenous authorities did not only deal with misdemeanours, but also with major issues. There was a compendium of laws which demonstrated that judges concurred with the indigenous system, and the system brought courts closer to the population.

In follow-up questions and comments, Committee Experts said that it was important that the indigenous legal system in place in Guatemala was compliant with human rights and asked whether dispensers of justice were legally trained; this was particularly important considering that they dealt with major crimes. Concerning the protection of human rights defenders, an Expert asked how the analysis of the situation was conducted and whether the body in charge was politically independent.

Responding the head of the delegation said that the effective protection of human rights defenders involved a human rights prosecution service and the Office of the High Commissioner for Human Rights, who were essential in the design of the protection mechanism that was about to be adopted. Every human rights defender had the right to lodge a complaint, upon which a risk assessment would be conducted.

Concluding Remarks

MARIA GUTIERREZ, Presidential Coordinator against Discrimination and Racism against Indigenous Peoples of Guatemala, thanked the Committee Experts and said that Guatemala would continue to combat racial discrimination, as evidenced by its fulfilling of a number of recommendations it had previously received.

DILIP LAHIRI, Committee Expert acting as Country Rapporteur, said that the concluding recommendations would be straightforward, as there were a number of issues that Guatemala still needed to address. The question of how history started would be a problematic one. The Rapporteur reassured the delegation that he did not wish to accuse Guatemala of not being objective.

ANTONIO ARENALES, President of the Presidential Commission for Coordinating Executive Policy on Human Rights, expressed satisfaction with the way in which this dialogue was conducted and said that all outstanding information would be communicated in writing.

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