Thursday, February 19, 2009

Update by BTS Intern Colin Gusikoski‏

This update will outline both the factual and legal aspects of some of the most pertenant cases the Bufete is working on. The most important aspect of the Bufete's work includes the 2 massive cases pending before the Inter-American Commission. These cases include 228 individuals who tragically lost their lives during the civil armed conflict in Guatemala. Due to the evidentiary requirements, the sheer volume of factual evidence accumulated in support of these petitions is enormous. It is hard to believe one small legal clinic with a lawyer and two auxiliary staff could have accomplished such a feat.

Current Cases

As the petitions before the Iner-American Commission make up the lion's share of the Bufete's current legal work, I will start with these cases. The most recently submitted case affects various massacres in eight separate communities as well as extrajudicial executions and forced disappearances in other places throughout the department of Rabinal. This single petition encompasses 17 separate incidents which resulted in 188 victims. These cases were packaged together as they were part of a coordinated offensive against the Achi indigenous communities in the department of Rabinal, initiated in March of 1982. Moreover, a single petition is in the interests of judicial expedience and procedural economy.

The second case pending before the Commission concerns the Chichupac massacre, submitted to the Inter-American Commission on December 13, 2007. This petition names specific atrocities which were committed in a tighter geographic location around the communities Chichupac and Caserio Xeabaj, both in the municipality of Rabinal. The said atrocities include 33 victims of a massacre in Chichupac committed on January 8, 1982 and 27 forced disappearance or extrajudicial executions committed between the dates August 23, 1981 and December 15, 1984.

Currently the Bufete is also starting preliminary discussions with 256 residents of a large finca (large farm), the rightful owners of which were displaced during the civil war. The current owners of this land were originally from Rabinal and Quiche and purchased a large area of land which amounts to around 40 square kilometres for 639.46 pesos. The displaced community had legal tenure of the same finca since as early as 1906. However, the government resold this land once the original owners had fled the violence and threats to their safety. As both communities are indigenous and indigent, the ideal outcome is for a negotiated settlement of some sort.

Legal Aspects

I thought it would also be helpful to include some of the legal aspects of the petitions before the Inter-American system. There are five stages set out in the American Convention of human rights which any case before the Commission must go through. These stages, in chronological order, are: admissibility; factual investigation (including information provided by both parties); friendly settlement; submission of a provisional report; and, the transmission of the case before the Inter-American Court. Both of the petitions have yet to make it through the admissibility phase of the Commission's procedures. As cases have historically taken an average of three to four years to get to the Court and another three to four years beyond that, justice is still a few years away.

The first petition (Chichupac) was filed with the Commission on December 13, 2007. The government of Guatemala has since contested this application on two main legal grounds. First, the government is objecting to the fact that the petitioners have failed to exhaust domestic remedies as the case is under renewed investigation by the relevant authorities. Second, the government is also contesting the petitioner's decision to try the merits of the cases as a bundle. Despite these objections it is very unlikely that the case will not be admitted by the Commission.

As for the second petition, because it was only submitted in early December there will be some time before it can move forward. The Commission must first redact the security-sensitive information and submit it to the government. The state of Guatemala then has two months to respond, with an ability to request up to three months extension. Given the state's historical treatment of these petitions we can expect that they will again contest this case.

Personal Challenges and Rewards

My experience working with the Bufete has been exceedingly challenging and at the same time intensely rewarding. The most challenging aspect has been dealing with a completely different legal system in a completely different language. Initially, my work seemed impossible as I was dealing with both complexities at the same time. This also made me feel burdensome to my organization as I was not very productive nor helpful. Bit by bit however, I have been able to construct an adequate understanding the case law and I am starting to feel more comfortable with my Spanish. As most cases are reported in English I am able to conduct all my research efficiently and effectively but I also have to convey this information. Perhaps the most challenging part of my job at this stage is condensing my research in an accessible form (ie Spanish memos) for Maria Dolores.

The same elements of my work which give me the most difficulty also give me the most enjoyment. First, it has been extraordinarily stimulating learning about the inter-American system. The variant procedures before the Commission and the Court as well as the jurisdiction and jurisprudence of each are all very fascinating. Second, I enjoy learning another language especially while immersed in a different linguistic and cultural environment. It is fun to be constantly challenged and have such a rewarding learning curve.

In regards to the village I have been placed at, working and living in Rabinal has been nothing but a pleasure. The people here are exceptionally kind and the town itself is surrounded by a beautiful mountainous landscape. There have been challenges related to making friends who are from the area but I am able to interact with them during my many visits to the market and through my involvement in two soccer leagues.

In all, my internship has been a rich and rewarding learning experience. Not only have I deepened my understanding of international human rights, Spanish and Guatemala, I also have a firmer knowledge about myself, humanity and my bearings in the world.