The Inter-American Commission on Human Rights (“IACHR”) brought a claim against the Republic of Guatemala (the “State”) concerning the Las Dos Erres massacre, in which a group of the Guatemalan armed forces, called “Kaibiles,” attacked a village, beating, raping or killing 251 inhabitants and kidnapping several children. Subsequently, the State reached a settlement with the victims of the event, acknowledging responsibility and providing certain reparations, including medical and psychological treatment, as well as investigation of the incident. The claim alleged that following the disaster, the State had unjustifiably delayed investigating the incident, hindered the subsequent investigation, failed to execute arrest warrants against some alleged participants, and lacked impartiality in investigation and prosecution of individuals involved in the massacre.
Plaintiffs claimed the failure to adequately investigate, prosecute and punish those responsible for the incident violated Art. 25 (right to judicial protection) and Art. 8 (right to a fair trial) of the American Convention on Human Rights (the “Convention”) together with Art. 1(1) thereof (state’s obligation to respect such rights). Although the State partially accepted the facts alleged by the Plaintiffs, the State denied that its conduct following the incident violated the Convention. The State also argued that the Court lacked competence to decide the claim, as the State’s submission to the Court’s jurisdiction occurred only after the incident.
Concerning the Court’s competence in this case, the Court reasoned that while the massacre itself occurred before the State accepted the Court’s jurisdiction, the alleged failure to investigate extended beyond this time. Therefore, while the Court could not rule on alleged violations in the incident itself, it could rule on subsequent violations, including the investigation.
The Court evaluated the investigations based on due diligence standards, and emphasized the pattern of sexual violence used against women during armed conflicts. The Court also highlighted the State’s obligations to specially protect children against illegal abduction and detention of minors that is perpetrated and tolerated by agents of the State.
The Court concluded that the State’s failure to adequately address the incident violated the Plaintiffs’ right to a fair trial and judicial protection enshrined in Articles 8(1) and 25(1) of the Convention, as well as its obligation to respect and adopt domestic law to give effect to the Convention. The Court held that the State violated the Inter-American Convention to Prevent and Punish Torture (“CIPST”), under articles 1 (state duty to prevent and punish torture), 6 (state duty to criminalise, prevent and punish torture within its jurisdiction) and 8 (state duty to provide prompt and impartial investigation of alleged torture and access to means of appeal), as well as the Inter-American Convention on the Prevention, Punishment and Eradication of Violence Against Women (the “Convention of Belem do Para”), under Art. 7(b) (state duty to apply due diligence to prevent, investigate and punish violence against women). The Court found that the State had a duty to conduct a prompt and impartial investigation into allegations of torture. Further, under Art. 7(b) of the Convention of Belem do Para, the state was obligated to act with due diligence to investigate allegations of sexual violence, including rape, forced abortion and torture. Further, the State violated Art. 5(1) of the Convention (right to humane treatment), together with Art. 1(1) and Art. 19 (rights of the child) in respect of the child survivors.
The court ordered the State to fully investigate the incident and remaining domestic claims without delay and to prosecute those responsible, to pay monetary reparations to victims, and to undertake various actions including providing for training courses on human rights for state authorities, providing medical and psychological treatment for victims, to create a website for the location of lost children abducted in the massacre, and to exhume and identify the remains of unidentified victims of the massacre.
Concurrence of J. Ramon Cadena Ramila
In a full concurrence, J. Cadena Ramila recognized that the actions of the military violated the humanitarian principles of armed conflict set out in the Geneva Conventions, including the principle of distinction between civilian and combatant parties, the principle of proportionality, and the prohibition on causing superfluous or unnecessary suffering. Such gross violations of these principles and of erga omnes principles inherent in international humanitarian law constituted aggravating factors which the judge concluded should have been discussed in the Court’s decision. While not in position to enforce such treaties, it was incumbent upon the Court to consider severe violations of other international humanitarian law in applying the provisions of the Convention.
The judge noted with approval the Court’s application of the Convention of Belem do Para, adding that its application is crucial to highlight the inequities that give rise to gender-directed violence and “the specificity in the protection needed by those who suffer inequality or discrimination…concretely, of women.” The judge also concluded that the Court should have prescribed remedies that were specifically responsive to the gender-directed violence alleged—such as ordering training for public officials on issues of gender violence; consideration of gender violence in Guatamala’s National Compensation Plan; and further public sector training programs and protection policies.
The judge also emphasized that Guatemalan officials had a duty to disclose information relating to the incident as part of the state’s duty to investigate and that states cannot invoke state secrets or confidentiality doctrines to delay or obstruct investigations of alleged human rights violations of this magnitude.