Where are the disappeared? Challenging the silence pact and looking for solutions
By Clara Sandoval and Luke Moffett
More than 20 years have passed since the signing of the peace agreements in Guatemala (1996) and more than 15 years since the creation of the National Reparation Program (2003). However, the bodies of the more than 45,000 missing persons (including 5,000 children), who have been recovered, identified and handed over to their families, remain minimal. This despite the great effort made by civil society organizations and their families to recover them. The lack of response from the State of Guatemala and its various institutions to this problem is really worrying.
After doing fieldwork in Guatemala between 2016 and 2018, as part of the research projects funded by the AHRC in the United Kingdom on ‘Reparation, responsibility and Victims in Transitional Societies’, and the ESRC on’ Implementation of the Human Rights Law’, it seemed very important to put the issue on the table and explore possible solutions to find the disappeared.
Finding the missing is not an easy task
The perpetrators are silent. In Guatemala, additionally, there are other factors that prevent finding them. For example, there is no official registry of missing persons (but several created by NGOs), a national search committee for missing persons has not been created, there is no official genetic bank and it has been several years since the disappearances took place . Additionally, there is no will or institutional support to carry out the excavations and identifications of the bodies. Likewise, the geography of the sites has changed and the memories of the possible witnesses has begun to fade.
The case of Creompaz in Cobán, Alta Verapaz (Guatemala), shows us this reality. The graves of this case were found in military zone 21, where an illegal and torture center of community, peasant and indigenous leaders of the region operated and a clandestine cemetery between 1981 and 1988. The cemetery contains the mortal remains of several cases and disappearances that occurred at different times of the conflict in Guatemala. At least since 2000, there were important indications that there were graves in CREOMPAZ; however, it was not possible to exhume them until between 2012 and 2015, decades after the events occurred. This happened thanks to the testimonies given in 2012 during the criminal trial in the case of the Plan de Sánchez massacre in Guatemala.
FAFG, the Forensic Anthropology Foundation of Guatemala, found approximately 558 bodies in 4 graves. Of these, 90 bodies belong to children. This case was finally prosecuted and there are several military involved in the investigation and several fugitives from justice. Among the military investigated is Manuel Benedicto Lucas García, who was recently convicted in the Molina Theissen case. However, they have faced great challenges. For example, that the operative plans of Victoria 82 and Firmeza 83 or the Manual of Contrasubversive War are not accepted as pieces of evidence, this appealing to the theory of military secrecy that must be respected. This, together with the denial of the facts by the military, does not help to identify the disappeared or to determine what happened.
However, it is clear that those who committed the disappearances know better than any other person where they can find those they disappeared and know the plans that were organized for that purpose. The appearance of the Diario Militar in 1999 is evidence of this.
The relatives of the disappeared are also crucial in the search for their loved ones, as corroborated in the CREOMPAZ case, the NGO FAMDEGUA (Organization of Relatives of the Detained-Disappeared of Guatemala). Without wanting it, the relatives become expert investigators of the disappearances of their loved ones.
Why should the pact of silence be broken?
Although impunity in Guatemala has been rampant despite the atrocities that were committed during the armed conflict, in recent years we have seen that justice, understood as the investigation, prosecution and punishment of the perpetrators and intellectuals of said atrocities, delay but it arrives. If the perpetrators of so many atrocities believed that there would never be justice, now they have reason to feel that the time has come to render accounts outstanding. The trial of Efraín Ríos Montt, former head of state, for the Ixil genocide, in which he was convicted in 2013 shows that even someone of his power can be brought to justice even though the sentence there was annulled a few days later. Similarly, the conviction against four of the defendants in the case Molina Theissen in May 2018 is also a sign that justice reaches even for people like Lucas García, former chief of the Army Staff. Other cases join these as Zepur Zarco, Plan de Sánchez and Dos Erres. Other cases are still under investigation or trial.
Likewise, although several decades have passed since the disappearances took place, the perpetrators are aging and dying as well as the relatives of the victims, but there is a new generation of both relatives of the disappeared and the perpetrators, wanting to understand what happened in Guatemala and the truth of what happened. Giving the new Guatemalan generation a lesson in truth and repentance would be a guarantee of invaluable non-repetition on the part of those who committed such atrocities. That they are the ones who speak would help not only in the search for the disappeared, but also their own families who have had to give a fight that was not theirs without being clear what happened. Likewise, it would help to build a strong State where the imperative of the law and justice is accepted and the human rights of all are protected without any distinction.
Recovering the bodies of the disappeared victims is an essential way to repair their relatives. This was specifically considered as one of the measures of reparation included in the National Reparation Plan in Guatemala. The PNR faces great challenges due to its inability to repair the victims. Although all the reparation measures are of the utmost importance and should be given to their beneficiaries, it is clear that the PNR could play a leading role, along with other institutions, both from the State and civil society, in the coordination of a national search and identification of remains of missing persons in order to compensate their victims.
What can be done so that the pact of silence is broken?
Various tools have been useful internationally to find missing persons. In Colombia, for example, during the implementation of the Justice and Peace Law through which paramilitary groups were demobilized, many bodies of missing persons were found. This was possible, among other reasons, thanks to the benefits that the Law of Justice and Peace granted to the demobilized. They were deprived of freedom between 5 and 8 years, provided they confess all the truth in free versions and gave the goods obtained illegally to provide reparation to the victims. This was an important incentive for the perpetrators to talk about the disappeared. In fact, the Office of the Prosecutor in Colombia indicates that of the 9,000 bodies located and exhumed thanks to the information given in application of the Justice and Peace Law, 4,296 have been identified.
The search for the disappeared in Colombia, however, continues. The peace agreement between the FARC and the government reached in 2016 included the creation of a Search Unit for Missing Persons with a clear mandate to search and find the disappeared, not only to collaborate with the competent authorities in their search, as He did for several years the Search Committee for Missing Persons created in 2000. The Agreement also contains important incentives for breaking the silence and telling the truth, including that related to the disappeared.
The creation of the Search Unit for Missing Persons is very important and constitutes a step in the right direction in Colombia. In contrast, in Guatemala, despite the thousands of disappeared, there is no institution with this legal mandate. Inclusively, since 2007, a bill (the 3590) for the creation of the National Commission for the Search of Victims of Enforced Disappearance and other Forms of Disappearance as a result of important discussions of Civil Society was presented in Congress. This bill continues without being approved after more than a decade. It contemplates, among other things, the creation of a single register of victims in charge of the Commission and the creation of a genetic data bank. The importance of taking measures to search for the disappeared in Guatemala can not be seen simply as a gesture of goodwill. On the contrary, it is the result of obligations derived from several international treaties that bind Guatemala and several international judgments, such as that of the Inter-American Court of Human Rights in the Molina Theissen case.
In the case of Northern Ireland there is also an interesting experience to get the perpetrators to break the silence. There, the decision was made to create the Independent Commission for the Location of Bodies – The Independent Commission of the Location of Victims Remains – (ICLVR), which was created after the Good Friday Agreement in 1998 to find the disappeared. Basically, both the public and the perpetrators can provide confidential information to the Commission, which can not be used in criminal investigations. Those responsible for the disappearances, such as the IRA, have a spokesperson who is in communication with the Commission to provide information and maps about the places where the disappeared are located. This minimizes the existing risk for the perpetrators. Thanks to the work of the Commission, 13 of the 16 bodies of the disappeared have been found.
There are other important experiences in the world created in order to find the disappeared and to promote the truth and for the perpetrators to speak. Guatemala and the Guatemalans have an immense debt to the disappeared, their families and the new generation of Guatemalans. Solving this problem does not give waiting. We must close the bloody chapter of the armed conflict and the transition by finding the truth and the bodies of the disappeared. You have to think about criminal and other types of incentives that promote this. Justice must take its course, but the idea of giving certain benefits in criminal matters, as in the case of Colombia, can greatly help justice. These incentives must be conditioned on real and clear contributions to the truth and to the location of bodies.
The approval of Law 3590 creating the Commission for the Search of Missing Persons is of crucial importance. Equally, it is the creation of a Unique Victim Registry that is built on the work of the Truth Commission (both that of the REHMI Commission and that of the CEH), and the records made by various NGOs in Guatemala. The genetic bank or a genetic information system are also key. Finally, it should not be forgotten that the PNR can and should play a very important coordinating role in this issue in Guatemala, giving support to the victims and their organizations.
This blog post originally appeared in Spanish on Corte IDH blog.