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The attacks by the Public Prosecutor’s Office and a rotten wing of Guatemala’s Judiciary against the 2023 electoral process leave no doubt that the country’s justice system has been captured by corruption networks. After these illegal attempts to prevent the inauguration of President-elect Bernardo Arévalo, Guatemalan democracy remains hostage to the “pact of the corrupt” (pacto de corruptos) among several congressmen, judges, prosecutors, military, businessmen and criminal organizations. Over the last few years, this scheme between public and private actors has been waging two wars in Guatemala; a low-intense war against democracy and a total war against Indigenous peoples. This article comments on some aspects of this warfare, characterized by mass evictions and the arbitrary use of punitive power, which is anchored in a legal, political and institutional framework that seeks to guarantee private interests over indigenous territories.
History of agrarian conflict and recent setbacks
Despite commitments made during the 1996 peace accords to resettle communities displaced during the internal armed conflict and to adopt a new agrarian regime, Guatemala’s legal and institutional framework has been shaped to consolidate land grabs in Indigenous territories. The list of recent setbacks exceeds the editorial dimensions of an op-ed, but I highlight the following three:
1. Legal and prosecutorial backlashes
Created in 2021 by Attorney General Consuelo Porras, the Specialized Prosecutor’s Officeagainst Trespassing has brought charges against hundreds of Indigenous peoples who claim collective property to their traditional lands. This Office has been instrumental in supporting the Observatory of Property Rights, founded by the Chambers of the Coordinating Committee of the Agricultural, Commercial, Industrial and Financial Associations (CACIF, as in its Spanish acronym), which signed an agreement with Ms. Porras months before the establishment of the Office against Trespassing. This agreement has allowed members of CACIF to regularly provide information on data systematized by the Observatory to the Public Prosecutor’s Office, for the substantiation of indictments often in favor of companies and individuals who claim to be owners of lands inhabited by Indigenous communities.
2. Reversals of case-law
Up until early 2020, the Guatemalan Constitutional Court (CC) had developed a line of jurisprudence in accordance with international human rights standards. Among other advances, the CC considered the writ of constitutional mandamus (recurso constitucional de amparo) to be a suitable remedy for claiming Indigenous territorial rights. After the Congress’ onslaught that prevented the election and swearing in of magistrates not aligned with the pact of the corrupt, the CC overhauled its case law and affirmed the unsuitability of constitutional remedies aimed at acknowledging Indigenous’ title to their traditional lands. In addition to the case law setbacks in the CC, the Criminal Chamber of the Guatemalan Supreme Court of Justice lacks guidelines for criminal court judges who hear trespassing claims and issue eviction warrants against Indigenous communities.
3. Setbacks in public policies
As the governments of Jimmy Morales and Alejandro Giammattei acted with total submission to private interest groups, the Executive Branch’s meager agrarian institutionality was progressively dismantled. Among other measures detrimental to Indigenous and peasant communities, between 2021 and 2022 the budget and operational capacity of the Land Fund (Fondo de Tierras), created for the acquisition of property for agrarian reform, was considerably reduced. In addition, the now defunct Secretariat of Agrarian Affairs (SAA) had guidelines on evictions, including free social and legal assistance, and was also in charge of titling investigations essential to identify irregular acquisitions of Indigenous lands. In early 2020, Giammattei closed the SAA and sent the archive with its technical studies to the Secretariat of Planning and Programming of the Presidency for custody, further favoring land grabbing of Indigenous territories. It should be noted that the Registry of Cadastral Information – in charge of maintaining information on the location, dimensions and use of real estate – does not have studies or censuses to ascertain the validity of private property titles in Indigenous territories.
Patterns of judicial warfare against Indigenous peoples
Guatemala is one of the few countries where criminal proceedings, rather than civil or agrarian, are widely used to evict Indigenous communities. The judicial authorities in charge of these proceedings are not entitled to review the validity of the property title grounding trespassing criminal charges. At the same time, Guatemala is perhaps the only country in Latin America where an Indigenous community in possession of a given territory must resort to an ordinary civil lawsuit to reclaim its property, a procedure that is much more costly, slower and more cumbersome than a constitutional remedy.
Accusations of crimes of trespassing and aggravated trespassing have been used to carry out violent court-ordered evictions against Indigenous peoples, without prior notification or guarantees of resettlement, and without the opportunity for communities to exercise their right of defense and demonstrate ownership of the territories they have historically occupied. During evictions, there have been reports of the burning and destruction of homes, belongings, traditional clothing, food sources, crops, and the loss and theft of animals, thus eliminating the possibility of returning to the land. Frequently, evictions are the result of the enforcement of search warrants against countless members of a given community facing charges of trespassing private property.
Conversely, extrajudicial evictions have proliferated, almost always resulting in impunity and people being wounded and killed. On occasion, there have been joint actions between police and private security companies, most of which are owned by former members of the army and police officers. A staggering example of abuse committed by such companies took place between 2007 and 2009, when members of the security force for the transnational mining company Hudbay Minerals Inc raped eleven Q’eqchi’ women and murdered a community member during eviction operations in Lote Ocho, El Estor, in the department of Izabal. Police and army offices also took part in these violent evictions. Given the impunity surrounding these incidents in Guatemala, the victims filed a civil action against Hudbay in Canada.
It is worth noting the constant acts of criminalization against journalists investigating land grabs in Indigenous territories in Guatemala. A recent example is the opening of successive criminal investigations against journalist Carlos Choc after he denounced corruption schemes between businessmen and local authorities in El Estor. This is how arbitrary criminal prosecution has supplanted the bloodiest forms of silencing those who denounce land grabs in Indigenous territories. In this regard, it is important to recall the execution of anthropologist Myrna Mack Chang during the internal armed conflict, in reprisal for her investigations on how the Guatemalan army used Indigenous displacement both as a military tactic and a method to hoard the lowlands of Izabal and other departments in the northeastern part of the country.
Tragically, the Q’eqchi’ and Poqomchi’ communities facing trespassing charges are precisely those that managed to escape the massacres perpetrated by the Army during the internal armed conflict. The current kleptocracy in Guatemala is willing to conclude, by means of judicial orders, the goals that the dictatorship of the 1980s and 1990s was not able to achieve through military operations.
Final considerations
Although territorial dispossession is a scourge that has accompanied Guatemala’s history since colonial times, more recent patterns blend traditional strategies of authoritarianism with a certain veil of legality. The scorched earth policy that displaced hundreds of Mayan communities from their territories during the internal armed conflict has given way to «legal» modalities of evictions, through the prosecution of entire communities, declarations of states of siege and police operations authorized by judicial orders. Guatemala provides unfettered legal protection to companies and individuals claiming ownership of lands inhabited by Indigenous communities. These communities are in turn deprived of judicial protection to demarcate and title their territories and to challenge eviction orders.
On July 9, the Inter-American Commission on Human Rights (IACHR) held a hearing in which Indigenous, peasant and civil society organizations denounced the mass evictions in Guatemala. The intervention before the IACHR was complemented by a report detailing the context of these evictions, and the patterns of violence, criminalization and displacement of Indigenous communities. Both initiatives reinforce the findings of a study by an independent delegation of international lawyers, published in October 2023, which analyzes the main causes of agrarian conflict in the department of Alta Verapaz.
During the July 9 hearing, the Guatemalan government acknowledged the problem of the concentration of land and the challenges to guarantee the rights of Indigenous peoples. The IACHR called on Guatemala to put in place lasting solutions to the mass evictions in the country. The goodwill shown by the government is an opportunity to overcome setbacks by the Giammattei and Morales governments over the last eight years. It is no coincidence that the Indigenous movement has been the main guarantor of the integrity of the 2023 electoral process. If it were not for the Indigenous mobilization in front of the Public Prosecutor’s Office and in several regions of Guatemala, it is very likely that the kleptocracy would have succeeded in preventing Arevalo’s inauguration as the legitimately elected president.
Despite the political and moral debt of the current government towards Indigenous peoples, the main challenge in overcoming agrarian conflict in Guatemala is for the Attorney General’s Office and the Judiciary to be less responsive to the corrupt networks and more in line with international human rights standards.
Photo: AP Photo / Moises Castillo, File.
