One of the genocide forgotten by the history of the humanity is the one in Guatemala. Except for the international and regional Human Rights instances and some ONG which know about it in details; but it was forgotten by the majority of the world public opinion. In Central America wasn’t possible the elaboration of an historic memory of this awful fact to serve as an instrument to say no more to this type of crime. The genocide against the population indigene Maya was committed by the army of Guatemala (probably the crueler army of Latin America) between 1978 and 1986, together with other crimes of violation of the human rights, in the context of the civil war between the army and the guerrilla.

A recent international event was used to call for the attention of the population on such a crime. We’re referring to a resolution in October 2005 of the Tribunal Constitutional of Spain which establishes that the Spanish justice is competent to judge genocide outside its frontiers even if there weren’t any Spanish victims. This resolution is based on a principle of universal justice.

The case of Guatemala shows a clear situation where the Human Rights: truth, justice and reparation weren’t respected by the Guatemalan State. These three rights contribute to be sure that the crimes against the humanity are not left without being judged. The rights for the truth and the one of the reparation are new reconnaissance and are in the process to be consolidated by the international jurisprudence. Each one of these rights is applicable separately. From these rights, we can analyse the case of the genocide and the impunity in Guatemala.

The right for the truth: the victims (direct or indirect) have the right to know the truth about the crimes committed against them. This right gives a reconnaissance to the victims, which involves sometime that this truth can’t stay with the victim but has to be known by other people, so goes public. In consequence, the truth has to be recognized officially and publicly. Without its official reconnaissance, there won’t be any justice process and reparation. In another hand, the right for the truth involves the reconnaissance of the right for the elaboration of the historical memory of such crimes. The process of the elaboration of this memory is individual and collective and involve the victims, others social actors and the public power. This right for the memory is recognized by the Inter-American court of the Human Rights in its sentence against the State of Guatemala in the case of the extradition of Myrna Mack.

In Guatemala, the elaboration of the historic memory counts on two important points of information: the office of the Bishop of Guatemala with the project of the Recuperation of the Historic Memory (RMIH), from which was written the book “Guatemala nunca mas”. The Bishop Juan Gerardi was killed two days after presenting the book, case that was presented as a commune crime. The other point of information is the Commission for the Historic Establishment (CEH), of the ONU, instance which wrote a big report. Both documents tell about the grave events of the genocide in this country. Without doubt, one indispensable condition for the respect of the right for the memory to be effective, reside en that the State recognizes and participates at its elaboration. But the Guatemalan State persists in a position of negation. This negation is reflected in expression of soldiers: “what happened happened, and there is no question of looking into it”. That reflects the lack of politic decision from the State to defend the Human Rights and the democratic values.

The reports of the Bishop of Guatemala and the ONU, like the reports of Amnesty International and CODEHUCA, and the book of Prudencio Gracia: The genocide of Guatemala at the light of the military sociology (2005), show that in Guatemala there was a genocide, which was designed by high Guatemalan soldiers, with the accord of the authorities in the government; some examples are the manuals of torture and the school of formation of the Kaibiles, with which the army was trained to execute the genocide.

The other reason why we can talk about genocide is that all the actions were directed against a specific population: the indigenes Mayas in zones rural, a civil population disarmed who didn’t resist. The massive massacres against the population didn’t result of the confrontation between the army and the guerrilla. A report from the CEH on the genocide reports 626 massacres committed between 1962 and 1996. These massacres are attributed mostly at the army of Guatemala. Besides were executed tortures and executions extrajudicial, and others crimes against the humanity. All these actions resulted to 200 000 dead and disappeared people. 93% of these acts are the responsibility of the State.

Right for the justice: this right involves the duty of the State to create the judicial organization necessary for the denunciation, the investigation and the judgement of the authors of violation of HR. Beside, it involves that the State takes measures to avoid the impunity of grave and systematic violations of the HR.  If this process is not followed, it limits the action of reparation for the victims, which creates frustration and disillusion of the victims. In Guatemala, the State didn’t adopt the measures necessary to fight for the democratic rights; which ended up in series of disastrous tries to restructure the justice system independently and efficacy to resolve the cases of violation of the HR. One example is the project of the University of Harvard (1986-89), directed by Philip Heymann Ames, who at the end of the process denounced the complete lack of politic willing to fulfil this right.

The decision of the Spanish justice put in evidence that the judicial system and in general the government in Guatemala, are not able to warranty the judicial processes and the investigation on the genocide. The action of the Spanish justice is an important example, which opens a possibility for the global justice which was limited by the powers of the organisms of the international justice. For example, the International Penal Court can’t resolve the case of Guatemala because it can’t deal with cases of crimes committed between 2002. The Inter American Court of Human Rights, don’t have the necessary power either because it can’t condemn the individuals outside the United States.

The decision of the Spanish Justice to investigate the genocide in Guatemala, is based in a principle of justice universal which shows that certain violation of the HR are so serious that they disgust the moral conscience of the humanity; in consequence they can pursue these crimes outside the frontiers where occurred the right. This idea of justice universal is written in a document elaborated and approved by the Commission of the Human Rights of the ONU. In the reality the process of investigation started by the judge of the General Audience, Santiago Pedraz, has been limited. In July 2006, Pedraz ordered the capture of the ex president, General Efrain Rios Montt and 7 generals for the crime of the genocide. The Judge Pedraz tried to make a visit of investigation in Guatemala to realize audiences to interrogate the accused persons. This action was forbidden by the Tribunal Constitutional of Guatemala; instance which decided that Pedraz couldn’t interrogate Rios Montt; a resolution approved by 4 votes in favor and one against. Before, in July 2006, Amnesty International reported threatening acts against the witnesses of the court; many of these witnesses are members of ONG. In the edition of the journal El Pais of Tuesday November 7th, 2006, was the information that the Tribunal Penal of Guatemala authorized the capture for extradition of 4 military Generals and two civil reclaimed by the Spanish justice for the case of the genocide. Off course the resolution didn’t include the General José Efraín Ríos Montt. This news represents a step forward for the principle of the justice global in the case of Guatemala.

It seems that this incapacity of the justice instance to defend the HR goes father than the violations of these rights. In August 2006 by Philip Alston, reporter of the ONU for Guatemala, who after a visit of 4 days in this country, denounced the impunity to the murderers in Guatemala and the incapacity of the State to resolve these cases.

Right for the reparation: in many cases, the harm caused to the victims of violation of the HR are irreparable, the injuries are so serious that all they can do is learn to live with the dolour. The right for the reparation doesn’t appear in the international instruments of the HR, but appear in the jurisprudence international which create this right.

The reparation goes farther than the economic side. The reparation is a process, the victims have series of demands which can’t be expressed in the moment or immediately after the event, because the victims have a slow process to assume and get over the hurt and dolour. The victims need time to be able to speak. In this feeling, the reparation goes through the reconnaissance of the victims, which necessarily implicate the reconnaissance official of the truth and the justice (ex reparation extern).  In the other hand, the reparation implicates series of measures to repair the harm done to the victims like: retribution, indenisation, rehabilitation, satisfaction and the warranty of no repetition. In the case of Guatemala, they are far from realizing this right.
That’s why, the Guatemalan State, if he wants to consolidate its democratic institutions, its justice system and achieve a social reconciliation, have to start a process to recognize the genocide.