CCPR/C/143/D/4023/2021-4032/2021

GE.25-07387 (E) 311025 311025

Human Rights Committee

Views adopted by the Committee under article 5 (4) of the

Optional Protocol, concerning communications

No. 4023/2021, No. 4024/2021, No. 4025/2021, No. 4026/2021,

No. 4027/2021, No. 4028/2021, No. 4029/2021, No. 4030/2021,

No. 4031/2021 and No. 4032/2021*, **, ***, ****

Communications submitted by:

35 members of the K’iche’ Mayan people of the

municipality of Chiché (No. 4023/2021);

9 members of the Ixil Mayan people of the

municipalities of San Gaspar Chajul and San

Juan Cotzal (No. 4024/2021); 21 members of the

K’iche’ Mayan people of the Chicabracán

community of the municipality of Santa Cruz del

Quiché (No. 4025/2021); 26 members of the

K’iche’ Mayan people of the municipality of

Uspantán (No. 4026/2021); 28 members of the

K’iche’ Mayan people of the communities of

Cantón La Montaña in the municipality of San

Pedro Jocopilas and the village of Chajbal in the

municipality of Santa Cruz del Quiché

(No. 4027/2021); 4 members of the Kaqchikel

Mayan people of the municipality of San Juan

Comalapa (No. 4028/2021); 20 members of the

K’iche’ Mayan people of the municipality of

Santa Cruz del Quiché (No. 4029/2021);

26 members of the K’iche’ Mayan people of the

municipality of Chinique (No. 4030/2021);

28 members of the K’iche’ Mayan people of the

village of San Sebastián Lemoa in the

municipality of Santa Cruz del Quiché

(No. 4031/2021); and 72 members of the

Kaqchikel Mayan people of the municipality of

* Adopted by the Committee at its 143rd session (3–28 March 2025).

** The following members of the Committee participated in the examination of the communication:

Tania María Abdo Rocholl, Wafaa Ashraf Moharram Bassim, Rodrigo A. Carazo, Yvonne Donders,

Mahjoub El Haiba, Carlos Ramón Fernández Liesa, Laurence R. Helfer, Konstantin Korkelia, Dalia

Leinarte, Bacre Waly Ndiaye, Hernán Quezada Cabrera, Akmal Saidov, Ivan Šimonović, Soh

Changrok, Teraya Koji, Hélène Tigroudja and Imeru Tamerat Yigezu.

*** Three individual opinions by Committee members Rodrigo A. Carazo, Carlos Ramón Fernández

Liesa and Hélène Tigroudja (concurring) and one joint opinion by Committee members Yvonne

Donders and Laurence R. Helfer (concurring) are annexed to the present Views.

**** The annexes are being circulated in the language of the submission only.

United Nations

CCPR/C/143/D/4023/2021-4032/2021

International Covenant on

Civil and Political Rights

Distr.: General

9 September 2025

English

Original: Spanish

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GE.25-07387

San José Poaquil (No. 4032/2021), all

represented by Impunity Watch

Alleged victims:

269 members of the K’iche’, Ixil and Kaqchikel

Mayan peoples

State Party:

Guatemala

Date of communications:

Between 3 September and 5 October 2021

(initial submissions)

Document references:

Decision taken pursuant to rule 92 of the

Committee’s rules of procedure, transmitted to

the State Party on 13 October 2021 (not issued in

document form)

Date of adoption of Views:

17 March 2025

Subject matter:

Failure to implement agreements on reparations

for the forced displacement of Mayan peoples

during the scorched-earth policy

(Nos. 4023/2021–4031/2021); requests for

reparations for executions and enforced

disappearances (No. 4032/2021)

Procedural issues:

Competence ratione temporis; competence

ratione personae; exhaustion of domestic

remedies; fourth instance

Substantive issues:

Failure to implement reparation measures; forced

displacements

Articles of the Covenant:

2 (3), 7, 9, 12, 14 (1), 17, 23, 24 and 27

Article of the Optional Protocol:

5 (2) (b)

1.1

The authors are nationals of Guatemala, from the departments of Quiché and

Chimaltenango, and members of various communities of the K’iche’, Ixil and Kaqchikel

Mayan peoples. In the first nine communications (Nos. 4023/2021–4031/2021), the authors

claim that the State Party is violating their rights under article 12 of the Covenant, read alone

and in conjunction with articles 2 (3), 6, 7, 9, 17, 23 and 24, because of the forced

displacement of which they continue to be victims. In addition, in all 10 communications,

they allege a violation of their rights under article 7 as the family members of disappeared

persons, the rights of their disappeared family members (arts. 6, 7 and 9), and those of their

executed family members (art. 6). Lastly, also in all 10 communications, they allege a

violation of article 14 (1) of the Covenant, read in conjunction with article 2 (3), for failure

to open an ex officio criminal investigation into the facts, as well as a violation of

article 2 (3) (c) of the Covenant, for failure to enforce decisions recognizing their rights. The

Optional Protocol entered into force for the State Party on 28 February 2001. The authors are

represented by counsel.

1.2

On 13 October 2021, in accordance with rules 92 (5) and 97 (3) of its rules of

procedure, the Committee, acting through its Special Rapporteurs on new communications

and interim measures, decided to register the 10 communications jointly, to request the State

Party to submit observations relating only to admissibility and to consider the

communications jointly, separately from the merits. After having received observations from

the State Party on admissibility and comments from the authors, the Committee adopted, on

26 October 2022, its decision on admissibility, in which it stated that the

communications were admissible and requested the parties to submit information on the

merits (see paras. 4.1–4.4).1

1 CCPR/C/136/D/R.4023/2021-4032/2021.

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Facts as submitted by the authors

2.1

The authors are family members of persons executed or disappeared during the

internal armed conflict (1978–1996), during which the State Party applied a “scorched-earth”

policy against the Mayan people aimed at the destruction of the Mayan people as such.2 The

authors of the first nine communications were also forced to flee their lands. Having sought

refuge in the capital, to avoid persecution, they had to abandon their cultural practices, stop

wearing their traditional clothing and speaking their language, and change their identities.

They state that, since then, although the persecution ended with the 1996 Peace Agreements,

they are living in extreme poverty in the outskirts of the capital. The second- and

third-generation children born after their parents had been displaced still suffer from the

trauma of being uprooted from their cultural environment.

2.2

The authors submitted applications for reparations under the National Reparations

Programme.3 In 2005, the authors of communication No. 4032/2021 submitted applications

for financial reparations for the enforced disappearance and execution of their family

members (their applications have still not moved forward). In 2009, the authors of

communications Nos. 4023/2021–4031/2021 submitted applications for housing as

reparation for forced displacement.4 In 2011, the State Party recognized the latter authors as

victims of the crime against humanity of forced displacement.5 In the same year, the State

Party also recognized that they had been living in the capital “in conditions that violate human

dignity” and allocated to them plots of land suitable for the building of houses, which had to

be connected to the drinking water and electricity supplies and to the sewage and public

lighting systems.6 Even though public deeds granting each family its plot of land were issued

the same year, the houses in question have still not been built owing to a lack of budget. They

are still displaced in the outskirts of the capital.

2.3

In 2016, the Human Rights Advocate filed an application for amparo against the

National Reparations Commission for the stoppage of reparation measures.7 The same year,

the Amparo Court declared the application admissible and ordered the Commission to “take

the necessary administrative and financial steps, within 30 days, … to fulfil each of the

objectives of the National Reparations Programme so that it can continue to assist the victims

of the internal armed conflict, for whom it was established”. The Commission filed an appeal

but it was rejected by the Constitutional Court, which instructed the Commission to inform

the Amparo Court of the measures it had taken and the results obtained. The Commission

requested funds from Congress. When the Human Rights Advocate requested the

enforcement of the amparo ruling, the Amparo Court rejected the request, holding that the

measures ordered by the Constitutional Court had been taken. The authors argue that the

Commission did not comply with the essential part of the amparo ruling, which was to carry

out the reparation obligations set out in the National Reparations Programme.

2 United Nations Office for Project Services, Commission for Historical Clarification, Guatemala:

Memoria del Silencio, 1999, vol. IV, chap. IV, para. 111. See also the decision on admissibility

(CCPR/C/136/D/R.4023/2021-4032/2021), para. 2.1.

3 Established in 2003 along with the National Reparations Commission, both of which were attached to

the Peace Secretariat created in 1997 to implement reparations programmes for the internal armed

conflict.

4 Under inter-agency cooperation agreement CCI-9-2009, the State Party undertook to build

2,372 houses as a measure to combat the extreme poverty in which the displaced persons were living.

5 National Reparations Programme, collective decision on material reparation DAJ-141-2011, which

affirmed that “surviving in a hostile environment, with no food or shelter, and with young children

and older persons to look after, became a gargantuan task”.

6 National Reparations Commission, decision CNR-RM-10-2011. It was agreed in the reparations

agreement that the plots of land would be located in the “Las Vistas” subdivision, located at

kilometre 24.5 of the old road to San Raymundo, in the municipality of San Juan Sacatepéquez, in the

department of Guatemala.

7 Article 25 of the Amparo Act empowers the Human Rights Advocate to take action on behalf of

indeterminate victims and indigent persons. The authors, acting through the association Movimiento

Nacional de Víctimas del Conflicto Armado Interno de Guatemala, Q’anil Tinamit, participated as

interested third parties.

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2.4

In 2020, the State Party dismissed and did not renew contracts of staff of the National

Reparations Programme, and closed regional headquarters. On 19 April 2020, the authors

submitted a preventive amparo application to the Constitutional Court with a view to

preventing the President from shutting down the Peace Secretariat and the Programme. On

30 July 2020, the President of the Republic, by Government Order No. 98-2020, ordered the

closure of the Peace Secretariat and the attachment of the Programme to the Ministry of

Social Development. On 19 July 2021, the preventive amparo application was dismissed, as

it had become moot.

Complaint

3.

The authors of the first nine communications allege a violation of article 12 of the

Covenant because of their continuing forced displacement. Moreover, they allege a violation

of article 12 of the Covenant, read in conjunction with: (a) article 7 of the Covenant, because

not only do they survive by means of activities that fail to provide them with a decent living,

but they also suffer from serious psychosomatic illnesses as a result of being uprooted;

(b) article 9 of the Covenant, because they do not enjoy legal, physical or material security,

the three fundamental elements on which the right to return depends; (c) article 17 of the

Covenant, because their homes and crops were destroyed and being uprooted from their

territories had a particular impact on them because they are Indigenous persons; (d) article 23

of the Covenant, because of the break-up of the family unit, since family bonds have a special

significance for Indigenous Peoples; and (e) article 24 of the Covenant, because displaced

children, including those who were born displaced, suffer transgenerational harm because the

violence experienced by their parents is transmitted to them and because they live in a culture

that is alien to their Mayan culture, with a consequent loss of identity. The authors of all

10 communications also allege a violation of article 2 (3) (c) of the Covenant on the grounds

that decisions recognizing rights have not been enforced because the amparo ruling ordering

the National Reparations Commission to fulfil the reparation obligations established under

the National Reparations Programme has not been implemented. The authors of the first nine

communications also allege a violation of this article because the State Party has failed to

implement decision CNR-RM-10-2011, by which it undertook to build housing for the

authors as redress for their continuing forced displacement.

Decision on admissibility8

4.1

On 26 October 2022, the Committee determined that it had competence ratione

temporis in relation to the forced displacements (with reference to communications

Nos. 4023/2021–4031/2021), basing that determination on the continuing nature of the

forced displacements, as the authors had not yet benefited from a dignified and safe return to

their place of residence and had not yet been voluntarily resettled elsewhere in the country,

on the State Party’s recognition, after the entry into force of the Optional Protocol, that the

authors are victims of the crime against humanity of forced displacement, and on the State

Party’s failure to implement the resettlement agreement reached with the authors, having

allocated to them plots of land on which it has not yet built the housing that it had undertaken

to build.9 The Committee also considered that (a) the allegations related to the violation of

article 12 of the Covenant, read in conjunction with article 6, were not sufficiently

substantiated for the purposes of admissibility; (b) the allegations related to the violation of

article 12 of the Covenant, read in conjunction with articles 7, 9, 17, 23 and 24, were

sufficiently substantiated for the purposes of admissibility; and (c) the substance of the

authors’ allegations also points to a violation of article 12 of the Covenant, read in

conjunction with article 27.

4.2

However, the Committee considered that the subsidiary claims regarding the alleged

violations of articles 6, 7 and 9 of the Covenant, in respect of the disappeared persons, and

of articles 7 and 14 (1), in respect of the authors, were insufficiently substantiated and are

thus inadmissible, since, in the communications, the authors have focused more on the failure

to implement reparation measures. The Committee also considered that it did not have

8 CCPR/C/136/D/R.4023/2021-4032/2021.

9 Ibid., para. 7.5.

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competence ratione temporis in relation to the extrajudicial executions and sexual violence,

as the authors had not substantiated the alleged failure to investigate such instantaneous acts.

4.3

Lastly, the Committee considered that the claims that the State Party violated

articles 2 (3) (c) and 14 (1) of the Covenant by failing to implement the reparations provided

for in the National Reparations Programme were sufficiently substantiated for the purposes

of admissibility.

4.4

The Committee requested the parties to submit written observations and comments

concerning the merits of the communications. For further information on the facts, the

allegations, the parties’ observations and comments on admissibility and the Committee’s

decision thereon, please refer to the decision on admissibility.10

Other elements of the proceedings before the Committee

5.1

On 1 March 2023, the Committee, acting through its Special Rapporteur on new

communications and interim measures, invited two special procedure mandate holders of the

Human Rights Council – the Expert Mechanism on the Rights of Indigenous Peoples and the

Special Rapporteur on the rights of Indigenous Peoples – Oscar Parra Vera, a judge attached

to the Special Jurisdiction for Peace of Colombia, and the civil society organization

Indigenous Peoples Rights International, to make third-party submissions addressing the

multiple violations that may be entailed by the forced displacement of members of

Indigenous Peoples and the intergenerational harm caused to Indigenous children born

displaced from their families and communities.

5.2

Between June and August 2023, the Committee received three third-party submissions

(see paras. 8.1 to 10.5).

State Party’s observations on the merits

6.1

In its submission of 24 May 2023, the State Party states that there has been no

violation of articles 2 (3) and 14 (1) of the Covenant, since the rulings issued in the context

of the amparo proceedings were duly implemented. The State Party adds that the examination

of such violations would constitute a review of a judicial decision. The State Party also

specifies that the decision not to uphold a claim does not amount to a denial of justice.

6.2

The State Party further argues that there can be no violation of article 12 of the

Covenant because (a) owing to the Committee’s lack of competence ratione temporis, there

can be no consideration of the merits of this part of the communications; (b) the authors have

not provided any documents to substantiate the alleged deterioration of their living conditions;

and (c) the authors are free to settle in the place of their choice, as long as they respect the

private property of third parties.

6.3

In relation to the reading of article 12 of the Covenant in conjunction with the other

articles under which the authors’ claims were declared admissible, the State Party considers

that: (a) there is no violation of article 12, read in conjunction with article 7, since the authors

have not provided evidence of the alleged serious psychosomatic illnesses suffered or that

the State Party has intentionally inflicted torture or cruel, inhuman or degrading treatment or

punishment; (b) there is no violation of article 12, read in conjunction with article 9, since

the authors have not adduced evidence of the reprisals allegedly carried out by members of

former paramilitary groups; (c) there is no violation of article 12, read in conjunction with

article 17, firstly because what the authors are seeking is an examination of the right to own

property, which is not set forth in the Covenant, and secondly because the violation of the

right not to be subjected to interference with one’s privacy constitutes an instantaneous act

for which the Committee is not competent ratione temporis; (d) there is no violation of

article 12, read in conjunction with articles 23 and 24, for insufficient substantiation, as the

author’s allegations are but general references; and (e) there is no violation of article 12, read

in conjunction with article 27, since the State Party respects the rights of individuals to belong

to a culture and it is up to each individual to freely exercise this right.

10 Ibid.

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Authors’ comments on the merits

7.1

On 9 October 2023, the authors noted that the State Party, by failing to take a decision

on the matter, was concealing the acknowledgement of responsibility it had made in the

framework of the reparations agreements, having recognized the authors of the first nine

communications as victims of forced displacement. The authors point out that this

acknowledgement of responsibility took place after the entry into force of the Optional

Protocol, as detailed in the initial submissions and as set out in the decision on admissibility.11

The authors therefore argue that the State Party’s objections to the effect that there is no

violation of article 12 of the Covenant, read alone and in conjunction with the other articles,

are inadmissible.

7.2

The authors also note that the State Party is likewise silent on the failure to build the

houses in question. They point out that, in the plots of land allocated for this purpose, there

is still no access to drainage, drinking water, electricity or the sewage system.

7.3

The authors point out that, since the shutting down of the Peace Secretariat and the

attachment of the National Reparations Programme to the Ministry of Social Development,

no victim of the internal armed conflict has received reparations. The State Party itself has

acknowledged in its report to the Inter-American Commission on Human Rights that the

Programme lacks the appropriate structure and the necessary budget.12 The authors brought

criminal proceedings against the Minister for Social Development for breach of duty, which

were dismissed by the Public Prosecution Service in July 2023.13 The authors conclude that

the failure to implement the reparations agreements constitutes a violation of articles 2 (3) (c)

and 14 (1) of the Covenant.

7.4

They also allege that there was no implementation of the amparo ruling, in violation

of articles 2 (3) (c) and 14 (1) of the Covenant. The purpose of the application filed in July

2016 by the Human Rights Advocate was to combat the inactivity of the National Reparations

Programme. However, it has proved to be ineffectual, as the State Party continues to fail to

provide suitable and effective remedies to enable the fulfilment of reparations commitments.

They recall that, in order for the right of access to justice to be realized, it is not sufficient to

issue a final decision, rather there also needs to be effective mechanisms in place to enforce

it, thereby ensuring effective protection for the rights in question.14

7.5

With regard to the preventive amparo application filed by the authors in April 2020

to prevent the shutting down of the Peace Secretariat and the stoppage of reparations

programmes, the authors allege that both the fact that the Constitutional Court did not grant

the remedy of provisional amparo between the filing of the application and the issuance of

Government Order No. 98-2020, and the fact that, following the issuance of Government

Order No. 98-2020, it dismissed the application because it had allegedly become moot

without having heard the violation of the right to reparation, constitute violations of the

Covenant.

7.6

The authors add that violations related to lack of access to justice are more serious for

members of Indigenous Peoples, who suffer greater discrimination and exclusion.

7.7

In relation to the alleged lack of evidence of their living conditions in the capital, the

authors recall that inter-agency cooperation agreement CCI-9-2009 bears testament to the

violation of article 12 of the Covenant, read in conjunction with article 7, when it states that

the State Party’s undertaking to build housing was a measure “to combat the extreme poverty

in which the victims were living”. In addition, the authors enclose an expert report on their

11 Collective decision on material reparation DAJ-141-2011 and decision CNR-RM-10-2011.

12 Presidential Commission on Peace and Human Rights, State report on human rights enforcement in

Guatemala, 2022 (cited in the 2022 annual report of the Inter-American Commission on Human

Rights, chap. IV.b Guatemala, para. 112, footnote 182).

13 Decision of 24 July 2023 of the Office of the Prosecutor for Administrative Offences, case file

No. MP001-2022-62273.

14 Inter-American Court of Human Rights, Velásquez-Rodríguez v. Honduras, Judgment, 29 July 1988,

paras. 63 and 66; and Baena-Ricardo et al. v. Panama, Judgment (Competence), 28 November 2003,

para. 82.

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living conditions in the outskirts of the capital and on the impact of the facts from the

standpoint of Mayan cosmogony.15

7.8

With regard to the victims born after the displacement, the authors first recall that, in

the reparations agreements concluded with each of them, the State Party recognizes as victims

not only the authors, but also their families, since the property was awarded as a family asset,

thereby extending the reparation to their children and grandchildren.

7.9

The authors also argue that the structural discrimination that persists in the State Party

to this day inflicts transgenerational damage on the new generations, who are forced to

abandon their culture to avoid suffering discrimination. This results in the loss of cultural

identity, in violation of article 12 of the Covenant, read in conjunction with article 27.

7.10

The authors request the following reparation measures: (a) resettlement under the

conditions agreed with the State Party and, to this end, that the State Party be given six months

to consult and reach an agreement with them on the design of the houses, and two years in

which to build the houses; (b) medical and psychological and/or psychiatric treatment and,

to this end, that the State Party be given three months to carry out a comprehensive medical

and psychological examination to allow individualized treatment plans to be drawn up;

(c) the construction, in a location close to the resettlement area, of a fully equipped and

resourced health centre; (d) scholarships for primary, secondary and university education for

the authors who wish to avail themselves of this benefit; (e) financial compensation for

material damages and mental suffering; (f) a public act of acknowledgment of international

responsibility by the President of Guatemala, broadcast on national radio and television;

(g) production by the State Party of a documentary film of at least 120 minutes narrating the

story of the authors, made by a renowned director chosen by them; and (h) publication of the

present Views in Spanish, Mayan K’iche’, Mayan Kaqchikel and Mayan Ixil.

7.11

Lastly, the authors request, as guarantees of non-repetition, that the State Party

(a) order the extension of the National Reparations Programme for a minimum of 10 years,

ensuring that it functions properly and effectively; (b) develop a comprehensive plan to

search for persons who were victims of enforced disappearance during the internal armed

conflict and to return their remains to their families; and (c) devise a comprehensive policy

to combat racial discrimination against the Mayan people, which should be included in all

official curricula.

Third-party submissions

Submission of the Expert Mechanism on the Rights of Indigenous Peoples

8.1

On 8 June 2023, the Expert Mechanism on the Rights of Indigenous Peoples made a

submission in which it recalls that article 10 of the United Nations Declaration on the Rights

of Indigenous Peoples establishes the general principle of prohibition of forced displacement

of Indigenous Peoples and that article 28 provides that, in cases of forced displacement,

Indigenous Peoples have the right to redress by means that can include restitution or, when

this is not possible, the awarding of land equal in quality, size and legal status, or monetary

compensation or other appropriate redress, unless the peoples concerned have freely agreed

otherwise.

8.2

In relation to the multiple violations of the rights of Indigenous Peoples resulting from

forced displacement, the submission recalls that the Expert Mechanism16 has already made it

clear that the uprooting of Indigenous Peoples leads to the loss of their traditional knowledge

and weakens their systems of self-government and their right to self-determination.

Indigenous Peoples that are displaced to urban areas generally lack decent conditions in the

areas of employment, health, housing, transport and education, and are subject to

discrimination. In addition, displacement to urban areas exposes Indigenous Peoples to the

risk of cultural and physical extinction.

15 Anthropological expert report by Aura Cumes.

16 A/HRC/EMRIP/2019/2, paras. 9, 45, 49 and 50.

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8.3

The Expert Mechanism’s submission also recalls that the Constitutional Court of

Colombia noted specific consequences in connection with the displacement of Indigenous

Peoples, such as food-related problems owing to the disruption of cultural patterns and lack

of access to the food that they traditionally consume; health problems caused by losing access

to traditional forms of medicine; and cultural obstacles to coping with urban life in conditions

of extreme poverty and discrimination. In particular, the uprooting of Indigenous Peoples

triggers a break with various cultural references, including the traditional calendars according

to which their sacred, productive and political activities are carried out, and the breakdown

of collective and solidarity mechanisms for material and spiritual exchange, which results in

irreversible social disintegration that affects community solidarity and increases

individuality.17 The Constitutional Court of Colombia also held that forced displacement

leads to the total dislocation of members of Indigenous Peoples owing to the associated

cultural and linguistic rupture and their abrupt insertion in urban environments and situations

of poverty, which are alien to them.18 It thus established the right of displaced Indigenous

Peoples to receive preferential treatment from the State in order to prevent the perpetuation

or aggravation of the violation of fundamental rights.19

8.4

In relation to the intergenerational damage caused by the forced displacement of

Indigenous Peoples, the Expert Mechanism’s submission maintains that, for as long as their

return or the reparations established to put an end to the forced displacement do not

materialize, the displacement continues to cause intergenerational damage to the members of

Indigenous Peoples by preventing those who were originally displaced and their descendants

who were born and grew up disconnected from their cultural and linguistic practices, which

are essential for the continuation of their culture, from enjoying their rights. In particular, it

recalls that ties to traditional territories are central to the ability of Indigenous children to

reach their potential and exercise the full panoply of their rights, which depends on their

ability to exercise their right to self-determination.20 Therefore, the uprooting caused by

forced displacement affects all areas of the lives of Indigenous children, who lose the

connection with their lands and by extension their cultures, with impacts on their language,

education and health.21 In the short term, the main negative effects manifest in certain aspects

of survival, including difficulties in gaining access to food and healthcare, which is

contingent on having access to their lands. In the medium and long term, the identity of the

displaced and subsequent generations is profoundly undermined, as they lose all ties to their

ancestral lands and to the community practices underpinning their material, spiritual and

symbolic existence.

Submission of a judge attached to the Special Jurisdiction for Peace of Colombia

9.1

In July 2023, Oscar Parra Vera, a judge attached to the Special Jurisdiction for Peace

of Colombia, made a submission on the work of the Judicial Panel for Acknowledgement of

the Special Jurisdiction for Peace of Colombia focusing on intergenerational damage and the

multiple violations of the rights of Indigenous Peoples in the context of forced displacement,

particularly in the light of cases No. 02 and No. 03, which highlighted the damage suffered

by the Awá people and the Wiwa and Kankuamo peoples of the Sierra Nevada de Santa

Marta.

9.2

For the Judicial Panel, the consequences of forced displacement “are more serious

when it concerns victims belonging to the most vulnerable groups or persons who enjoy

special constitutional protection, who deserve special reparation and protection”. They suffer

differentiated and disproportionate damage. The Judicial Panel noted damage to individuals

with a collective impact, collective damage to ethnic identity and cultural and spiritual

integrity, damage to territories and damage to political and organizational autonomy and

integrity. It noted, in particular, damage to health (illnesses related to somatization disorder),

17 Constitutional Court of Colombia, Judgment No. T-025 of 2004.

18 Ibid., Order No. 004/09 of 26 January 2009.

19 Ibid., Judgment No. T-669 of 2003.

20 A/HRC/48/74, paras. 2 and 3.

21 Ibid., para. 32.

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the shattering of a belief system and the loss of knowledge and cultural practices. For example,

the Awá people:

experienced the weakening of their unbreakable connection with their territory, which

had the effect of disrupting their organizational systems of government, justice,

knowledge, transmission of knowledge, food, artistic expression, traditional medicine,

language and forms of communication with their territory and forcing them instead to

assume roles alien to their culture as part of the process of adapting to cities or the

places where they arrived.

9.3

The Judicial Panel noted that intergenerational damage in particular is due primarily

to the limitations placed on the intergenerational transfer of knowledge about the land and of

ancestral wisdom. The above entails damage to the future of the community. Indeed, “the

integrity and durability of culture are contingent on there existing in the future conditions

conducive to their own ways of life”. The uprooting caused by displacement results in the

loss not only of land but also of integral parts of the culture and identity of these peoples and,

in some cases, the intergenerational damage is such that some peoples are in danger of

extinction.

Submission of Indigenous Peoples Rights International

10.1

On 6 August 2023, Indigenous Peoples Rights International made a submission

comprising first and foremost an analysis of displacement in the light of the United Nations

Declaration on the Rights of Indigenous Peoples.22

10.2

In relation to article 7 of the Covenant, the submission argues that, in the State Party,

there is systematic racial discrimination against the Mayan people that constitutes torture or

cruel, inhuman and degrading treatment, since the ill-treatment has precisely a discriminatory

purpose.

10.3

The submission argues that the rights of Indigenous Peoples are, by definition,

intergenerational rights, as their purpose is to enable the continued existence of the peoples

themselves. Therefore, violations of Indigenous Peoples’ rights by definition cause

intergenerational harm. The submission also argues that the rights to self-determination and

traditional territories are closely related to the ability of Indigenous children to fully enjoy all

their other rights, and are key in relation to children and future generations. Thus, forced

removal from traditional territories has differentiated and highly detrimental impacts on

children.

10.4

In relation to the reading of article 12 of the Covenant, in conjunction with article 27,

the submission recalls that article 8 of the United Nations Declaration on the Rights of

Indigenous Peoples recognizes the right of Indigenous Peoples not to be subjected to the

destruction of their culture, and that article 10 prohibits forced removals precisely because

fundamental relationships with traditional territories underlie and sustain the survival of

Indigenous Peoples. Indeed, as it has observed in cases that it has litigated in the

inter-American human rights system, displacement, which brutally severs the connections of

Indigenous Peoples to their traditional territories, has a negative impact on the social cohesion

and cultural identity of the group, generating, in the most serious cases, the total loss or

serious deterioration of its ethnic and cultural identity.23

10.5

Lastly, the submission argues that the State Party’s failure to implement the

1996 Peace Agreements, specifically the Agreement on Identity and Rights of Indigenous

People, constitutes a violation of article 37 of the United Nations Declaration on the Rights

of Indigenous Peoples, as it amounts to a failure to implement “agreements and other

constructive arrangements” freely concluded between States and Indigenous Peoples.

22 A text which, as it recalls, constitutes, according to para. 13 of general recommendation No. 39

(2022) of the Committee on the Elimination of Discrimination against Women, an authoritative

framework for interpreting State Party and core obligations under the Convention.

23 Inter-American Commission on Human Rights, resolution 41/2023, Precautionary Measures

No. 196-23, “Indigenous Carib Community of Chinese Landing regarding Guyana”, 21 July 2023,

para. 55.

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Additional information provided by the parties

11.

On 4 March 2024, the State Party requested the initiation of a friendly settlement

procedure under the good offices of the Committee.

12.

On 28 May 2024, the authors of the communications rejected this request.

Issues and proceedings before the Committee

13.1

The Committee has considered the present communications in the light of all the

information submitted to it by the parties, in accordance with article 5 (1) of the Optional

Protocol.

Article 12, read alone

13.2

The Committee notes that the authors of communications Nos. 4023/2021–4031/2021

claim that the facts of the present cases disclose a violation of article 12 because of the forced

displacement of which they were and continue to be victims, as acknowledged by the State

Party itself. The Committee also notes the State Party’s argument that there is no violation of

article 12 because, firstly, the Committee does not have the competence ratione temporis to

examine the authors’ allegations, and secondly, because the authors are free to settle in the

place of their choice, as long as they respect the private property of third parties.

13.3

The Committee notes that (a) on 31 May 2011, the State Party recognized the authors

of communications Nos. 4023/2021–4031/2021 as victims of the crime against humanity of

forced displacement;24 (b) on 6 June 2011, by decision CNR-RM-10-2011, it assigned to

them plots of land on which it undertook to build them housing, precisely as a measure of

reparation for those continuing forced displacements; and (c) public deeds granting each

family its plot of land were issued on 14 October 2011. The Committee therefore considers

that, in accordance with the principle of estoppel,25 the position taken by the State Party –

that there is no violation of article 12 – is not admissible. Thus, the Committee considers that

the acknowledgment of responsibility made by the State Party in 2011, and its commitment

to provide reparation, are very much relevant for the purpose of analysing the violation of

article 12 of the Covenant.

13.4

The Committee also notes that, more than 14 years after the titling of the plots of land,

the State Party has still not built the houses agreed on as reparations. The Committee recalls

that forced displacement constitutes a continuing violation as long as the reality of the

displacement does not cease for the victims.26 In the light of the foregoing, the Committee

concludes that the facts before it disclose a violation of article 12 of the Covenant in respect

of the authors of communications Nos. 4023/2021–4031/2021.

Article 12, read in conjunction with article 7

13.5

The Committee notes the authors’ allegations that, owing to the continuation of the

forced displacements more than 45 years after they began, they are still living in the outskirts

24 National Reparations Programme, collective decision on material reparation DAJ-141-2011, which

affirmed that “surviving in a hostile environment, with no food or shelter, and with young children

and older persons to look after, became a gargantuan task”.

25 “International practice indicates that when a party in a case adopts a position that is either beneficial

to it or detrimental to the other party, the principle of estoppel prevents it from subsequently assuming

the contrary position. Here the rule of non concedit venire contra factum proprium applies.”, in

Inter-American Court of Human Rights, Neira-Alegría et al. v. Peru, Judgment (Preliminary

Objections), 11 December 1991, para. 29. See also Punta Piedra Garifuna Community and its

members v. Honduras, 8 October 2015, para. 55.

26 35 members of the K’iche’ Mayan people of the municipality of Chiché et al. v. Guatemala

(CCPR/C/136/D/R.4023/2021-4032/2021), para. 7.5; Inter-American Court of Human Rights,

Moiwana Community v. Suriname, Judgment, 15 June 2005, para. 108; and Río Negro Massacres v.

Guatemala, Judgment, 4 September 2012, para. 178. See also Plan de Sánchez Massacre v.

Guatemala, Judgment, 19 November 2004; “Las Dos Erres” Massacre v. Guatemala, Judgment,

24 November 2009; Village of Los Josefinos Massacre v. Guatemala, Judgment, 3 November 2021;

and Members of Chichupac Village and Neighboring Communities of the Municipality of Rabinal v.

Guatemala.

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of the capital in a situation of extreme poverty. The authors add that they continue to suffer

from serious psychosomatic illnesses as a result of displacement, which uprooted them. The

Committee also notes the State Party’s allegation that the authors have not provided any

documents to substantiate the alleged deterioration of their living conditions or the fact that

they allegedly suffer from serious psychosomatic illnesses.

13.6

With regard to the living conditions in the outskirts of the capital, the Committee

reiterates that the State Party itself acknowledged in 2011 that, since their displacement, the

authors have been living in the capital “in conditions that violate human dignity”27 and

undertook to build houses for them to remedy this situation. The Committee therefore

considers that the State Party has already acknowledged the situation denounced by the

authors. Moreover, according to the Expert Mechanism on the Rights of Indigenous Peoples,

Indigenous persons displaced to urban areas generally lack decent conditions in the areas of

employment, health, housing, transport and education, and are subject to discrimination. In

the context of the present communications, the Committee notes that, according to the

anthropological expert report submitted by the authors, the displaced authors in the capital

“lived on the streets for some time, ate from rubbish bins and lived on leftovers given to them

by others”.28

13.7

In relation to the psychosomatic illnesses stemming from the violence suffered, the

Committee notes the anthropological expert report, which states that the acts of violence and

displacement caused the authors “lifelong illnesses and impoverishment. Based on the

understanding of illness in Mayan cosmogony, they speak of fear, sadness, permanent pain

in the heart, grief, disrupted sleep and nightmares as an imbalance that has affected their lives

and those of their children.”29 The Committee also notes that it is particularly painful for the

authors of the communications not to have been able to bury their dead according to their

customs, and that some authors “have ended their mourning only when their loved ones have

asked them to do so in their dreams”.30

13.8

The Committee recalls that human rights treaties are living instruments that must be

interpreted and applied taking into account contemporary circumstances. 31 Thus, the

Committee notes that the Inter-American Court of Human Rights observed that, in

Indigenous cultures, to not perform the various death rituals is considered a moral

transgression, which leads to a number of “spiritually-caused illnesses that become manifest

as actual physical maladies and can potentially affect the entire natural lineage”.32 In Mayan

culture, it is very important to be buried in keeping with tradition since, otherwise, “the spirits

wander about lost; they are unable to maintain their contact with the living, or with the spirits

of their grandparents, or with those who have died before them or with the new generations,

and their ‘rebirth’ is thwarted”. 33 Lastly, the Committee also refers to the third-party

submission on the work of the Judicial Panel for Acknowledgement of the Special

Jurisdiction for Peace of Colombia, which noted that displaced Indigenous Peoples generally

suffer from illnesses related to somatization disorder.

13.9

In the light of the foregoing, the Committee concludes that the facts before it disclose

a violation of article 12 of the Covenant, read in conjunction with article 7.

Article 12, read in conjunction with article 9

13.10 The Committee notes the authors’ allegations that the right to security of person is one

of the key elements of measures to restore the rights of displaced populations and that the

right to return depends on three fundamental elements – legal, physical and material security

27 CNR-RM-10-2011.

28 Anthropological expert report by Aura Cumes.

29 Ibid.

30 Ibid.

31 Human Rights Committee, Roy et al. v. Australia (CCPR/C/137/D/3585/2019, para. 8.14; European

Court of Human Rights, Tyrer v. the United Kingdom, Application No. 5856/72, Judgment, 25 April

1978, para. 31; and Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni

Community v. Nicaragua, Judgment, 31 August 2001, para. 146.

32 Moiwana Community v. Suriname, para. 86 (9).

33 Inter-American Court of Human Rights, Plan de Sánchez Massacre v. Guatemala, para. 38 (d).

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– that are lacking in their case. The Committee also notes the State Party’s allegations that

the authors have not adduced evidence of the reprisals allegedly carried out by members of

former paramilitary groups that are preventing them from returning to their places of origin.

13.11 The Committee notes that, in their communications, the authors did not focus on the

impossibility of their returning to their traditional territories but on the State Party’s failure

to implement reparation measures consisting of the building of houses in a place other than

that of their communities of origin. The Committee also notes that the United Nations

Declaration on the Rights of Indigenous Peoples, which serves as an authoritative framework

for interpreting State Party obligations under the Covenant,34 establishes in article 28 that, in

cases of forced displacement, Indigenous Peoples have the right to restitution of their lands

or, when this is not possible, lands, territories and resources equal in quality, size and legal

status (or monetary compensation or other appropriate redress), unless the peoples concerned

have freely agreed otherwise. The Committee considers that, in the present communications,

the authors have not sufficiently substantiated the alleged violations entailed by not returning

to their traditional territories. Therefore, the Committee considers that it cannot conclude that

article 12 of the Covenant, read in conjunction with article 9, has been violated.

Article 12, read in conjunction with article 17

13.12 The Committee notes the authors’ allegations that there is a violation of article 12 of

the Covenant, read in conjunction with article 17, owing to the destruction of their homes

and crops, pointing out that the uprooting had a particular effect on them because they are

Indigenous persons. The Committee also notes the State Party’s argument that the authors

are seeking an examination of the right to own property, which is not protected by the

Covenant, and that the violation of the right not to be subjected to interference with one’s

privacy constitutes an instantaneous act for which the Committee is not competent ratione

temporis.

13.13 The Committee recalls that it has already considered issues relating to the right of

Indigenous Peoples to their traditional territories under article 17 of the Covenant. In

particular, the Committee considered that the location of an ancestral burial ground predating

the arrival of European settlers, insofar as it represents an important place in the history,

culture and life of the Indigenous People in question, 35 and elements of the traditional

territory of another Indigenous People, such as crops, livestock, fruit trees, hunting, gathering,

fishing and water resources,36 are part of the right to private and family life protected by

article 17. In the context of the present communications, the Committee considers that the

displacement of the authors from their communities of origin, where they had their property,

land, crops and livestock, amounted to a violation of article 12 of the Covenant, read in

conjunction with article 17.

Article 12, read in conjunction with article 23

13.14 The Committee notes the authors’ allegations that the constant persecution that they

suffered as a result of these facts led to the break-up of their family units and that family

bonds have a special significance for Indigenous Peoples. The Committee also notes the State

Party’s allegations that there is no violation of article 12 of the Covenant, read in conjunction

with article 23, for insufficient substantiation, as the authors’ allegations are but general

references.

13.15 However, the Committee takes the position that forced displacement, insofar as it

entails the break-up of the family unit, constitutes a violation of the right to a family,

specifically for failure to comply with the obligation to protect all persons against arbitrary

34 Roy et al. v. Australia, para. 8.7; Oliveira Pereira et al. v. Paraguay (CCPR/C/132/D/2552/2015),

para. 8.6; Billy et al. v. Australia (CCPR/C/135/D/3624/2019), para. 8.13; Sanila-Aikio v. Finland

(CCPR/C/124/D/2668/2015), para. 6.8; and Käkkäläjärvi et al. v. Finland

(CCPR/C/124/D/2950/2017), para. 8.6. See also Committee on the Elimination of Discrimination

against Women, general recommendation No. 39 (2022), para. 13; and M. E. V., S. E. V. and

B. I. V. v. Finland (CRC/C/97/D/172/2022), para. 9.12.

35 Hopu and Bessert v. France (CCPR/C/60/D/549/1993/Rev.1), para. 10.3.

36 Oliveira Pereira et al. v. Paraguay, para. 8.3.

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13

or unlawful interference with their family, which is the natural and fundamental group unit

of society and must be protected by society and the State.37

Article 12, read in conjunction with article 24

13.16 The Committee notes the authors’ allegations that those who were children when they

fled still suffer from the trauma of being uprooted from their family, cultural and social

environment, and that third-generation children (born when their parents were already

refugees in the capital) should also be considered victims, since they suffer transgenerational

harm (a) because the violence experienced by their parents or grandparents is transmitted to

them; (b) because they are growing up in an environment that is alien to their Mayan culture,

which entails a loss of identity and their being uprooted from their cultural environment; and

(c) because of the structural discrimination that persists in the State Party to this day, which

inflicts transgenerational damage on the new generations, who abandon their culture

precisely to avoid suffering discrimination. The authors recall that, in the reparations

agreements concluded with each of them, the State Party recognizes as victims not only the

authors, but also their families, since the property was awarded as a family asset, thereby

extending the reparation to the children and grandchildren of those persons directly displaced.

13.17 The Committee also notes the State Party’s argument that there is no violation of

article 12 of the Covenant, read in conjunction with article 24, since the allegations made are

general in nature and the persons who had not yet been born at the time of the events (which

occurred between 1977 and 1985) cannot be considered victims in the present cases.

13.18 The Committee notes that the Expert Mechanism considers that the forced

displacement of Indigenous Peoples continues to cause intergenerational damage for as long

as their return or the reparations established do not materialize, underlining that children born

and raised displaced are disconnected from their cultural and linguistic practices, which are

essential for the continuation of their culture. In particular, the Mechanism recalls that ties to

traditional territories are central to the ability of Indigenous children to maintain the

connection to their cultures, language, education and health, and, ultimately, to exercise the

full panoply of their rights without losing touch with the community practices on which their

material, spiritual and symbolic existence depends. 38 The Committee also refers to the

submission of the judge sitting on the Judicial Panel for Acknowledgement of the Special

Jurisdiction for Peace of Colombia, which noted the intergenerational harm caused by the

forced displacement of Indigenous Peoples, by preventing the transfer of knowledge about

their lands and of ancestral wisdom to new generations. The Committee also notes that, for

Indigenous Peoples Rights International, the rights of Indigenous Peoples are, by definition,

intergenerational rights, as they allow for the continued existence of the Indigenous Peoples

themselves. The submission also argues that forced removal from traditional territories has

differentiated and highly detrimental impacts on children.

13.19 The Committee also notes related developments in other international bodies.

Article 30 of the Convention on the Rights of the Child guarantees the rights of Indigenous

children to enjoy their own culture and to use their own language, a right which is referred to

in general comment No. 11 (2009) of the Committee on the Rights of the Child on Indigenous

children. The Committee on the Rights of the Child has found violations of the Convention

in relation to Indigenous girls owing to the intergenerational damage that mining activities

can cause, noting the intergenerational element of Indigenous rights, which are essential to

the cultural identity and the very survival of Indigenous Peoples as such.39 The Committee

also recalls that both it and the Committee on the Elimination of Discrimination against

Women have recognized as victims the descendants of Indigenous persons who were

prevented from transmitting their cultural identity to future generations, finding that the harm

is a direct consequence of the discrimination practised against their ancestors. 40 The

37 Inter-American Court of Human Rights, Yarce et al. v. Colombia, Judgment, 22 November 2016,

paras. 246 and 247.

38 A/HRC/48/74, paras. 2, 3 and 32.

39 M.E.V., S.E.V. and B.I.V. v. Finland, paras. 9.2 and 9.14.

40 Matson et al. v. Canada (CEDAW/C/81/D/68/2014), paras. 17.3 and 18.3; and McIvor and Grismer

v. Canada (CCPR/C/124/D/2020/2010).

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Committee on the Elimination of Discrimination against Women has also specifically noted

that forced displacement is one of the main forms of violence affecting Indigenous women

and girls, severing their connection to their lands, territories and natural resources and

permanently damaging their ways of life and those of their communities.41 The Committee

also notes that the Special Rapporteur on the rights of Indigenous Peoples has referred to the

intergenerational trauma suffered by Indigenous persons living in urban areas.42

13.20 The Committee also notes that the Inter-American Court of Human Rights has

emphasized several aspects of the ongoing trauma experienced by displaced Indigenous

children, including (a) the intergenerational transmission of the psychosocial effects of forced

displacement, which may affect the next generations of descendants of surviving victims;43

(b) that, to ensure the full and harmonious development of their personality, Indigenous

children, in accordance with their worldview, should ideally be educated and grow up in their

natural and cultural environment, as they have a distinctive identity that connects them to

their land, culture, religion and language;44 (c) that, if they are victims of forced displacement,

Indigenous children are forced to live in a foreign culture, which leads to loss of identity and

their being uprooted from their cultural environment;45 and (d) that the loss of traditional

territory, traditional practices and languages has a specific impact on the development and

cultural identity of Indigenous children, who will not be able to develop a special relationship

with their traditional territory or espouse the particular way of life associated with their

culture.46

13.21 In the light of the foregoing, the Committee considers that the facts before it disclose

a violation of article 12 of the Covenant, read in conjunction with article 24, both in respect

of the children who were displaced and the children who were born displaced.

Article 12, read in conjunction with article 27

13.22 The Committee recalls that, in its decision on admissibility, it found that the substance

of the authors’ claims also points to a violation of article 12 of the Covenant, read in

conjunction with article 27. In particular, not only did the authors allege “cultural

destruction” in domestic proceedings, but they also claim in international proceedings that,

to avoid persecution once displaced to the capital, they had to abandon their cultural practices,

stop wearing their traditional clothing and speaking their language, and change their

identities. In addition, they state that they are all still living in a culture that is alien to their

Mayan culture, with a consequent loss of identity, cultural uprooting and destruction of the

social and community fabric.47

13.23 The Committee notes the State Party’s allegations that there is no violation of

article 12 of the Covenant, read in conjunction with article 27, since it respects the rights of

individuals to belong to a culture and it is up to each individual to freely exercise this right.

13.24 The Committee notes that, according to the Expert Mechanism, the displacement of

members of Indigenous Peoples to urban areas exposes them to the risk of cultural and

physical extinction,48 as the associated uprooting triggers a break with several of their cultural

references. The Committee also refers to the submission of the judge sitting on the Judicial

Panel for Acknowledgement of the Special Jurisdiction for Peace of Colombia, which stated

that “the integrity and durability of culture are contingent on there existing in the future

conditions conducive to their own ways of life”, having also noted the danger of extinction

41 General recommendation No. 39 (2022), para. 37.

42 A/76/202, para. 4. In addition, the Committee notes that the International Criminal Court has

indicated that the damage resulting from international crimes such as crimes against humanity may

extend to future generations (Policy on children, 2016, paras. 58 and 103).

43 Village of Los Josefinos Massacre v. Guatemala, Judgment, 3 November 2021, paras. 122 and 124.

44 Río Negro Massacres v. Guatemala, Judgment, 4 September 2012, para. 144.

45 Members of Chichupac Village and Neighbouring Communities of the Municipality of Rabinal v.

Guatemala, Judgment, 30 November 2016, para. 202.

46 Xákmok Kásek Indigenous Community v. Paraguay, Judgment, 24 August 2010, para. 263.

47 35 members of the K’iche’ Mayan people of the municipality of Chiché et al. v. Guatemala

(CCPR/C/136/D/R.4023/2021-4032/2021), para. 7.8.

48 A/HRC/EMRIP/2019/2, paras. 9, 45, 49 and 50.

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of displaced Indigenous Peoples. The Committee also notes that, for Indigenous Peoples

Rights International, article 10 of the United Nations Declaration on the Rights of Indigenous

Peoples prohibits forced removals precisely because fundamental relationships with

traditional territories underlie and sustain the survival of Indigenous Peoples. The

organization has observed that displacement, which brutally severs the connections of

Indigenous Peoples to their territories, has a negative impact on the social cohesion and

cultural identity of the group, generating, in the most serious cases, the total loss or serious

deterioration of its ethnic and cultural identity. This was also observed by the Inter-American

Court of Human Rights, which noted that forced displacement, with its destructive

consequences for the ethnic and cultural fabric, exposes Indigenous Peoples to a clear risk of

cultural or physical extinction.49

13.25 The Committee also notes that article 8 of the United Nations Declaration on the

Rights of Indigenous Peoples recognizes the right of Indigenous Peoples not to be subjected

to destruction of their culture.50 However, in the present cases, as the anthropological expert

report submitted by the authors, which the State Party has not contested, states, in the capital,

“Indigenous clothing made the persons wearing it a target. One of the most stigmatized pieces

of clothing was that worn by the Ixil people. Dressing as an Ixil meant seriously risking one’s

life. Therefore, to protect themselves, women had to wear western skirts.”51 More generally,

the “displaced persons experienced fear, violence and suffering when they lived openly as

Mayans, which led many to instil in their children the strategy of hiding ‘being Indigenous’

in order to survive”.52

13.26 In the light of the foregoing, the Committee considers that the facts before it, in

particular the uprooting of the authors, which has lasted for more than 45 years, and their

being forced to stop wearing their traditional clothing and speaking their language, disclose

a violation of article 12 of the Covenant, read in conjunction with article 27.

Articles 2 (3) (c) and 14 (1)

13.27 The Committee notes that (a) the authors of all 10 communications allege a violation

of article 2 (3) (c) of the Covenant on the grounds that decisions recognizing rights have not

been enforced because the amparo ruling ordering the National Reparations Commission to

fulfil the reparation obligations established under the National Reparations Programme has

never been implemented; (b) the authors of the first nine communications also allege a

violation of article 2 (3) (c) of the Covenant because the State Party has failed to implement

decision CNR-RM-10-2011, by which it acknowledged its responsibility and undertook to

build housing for the authors as redress for their continuing forced displacement; and (c) the

authors of all 10 communications further allege a violation of articles 2 (3) (c) and 14 (1) of

the Covenant in relation to the preventive amparo application that they filed to prevent the

shutting down of the Peace Secretariat and the stoppage of reparations programmes, firstly,

because the Constitutional Court did not grant the remedy of provisional amparo between

the filing of the application and the issuance of Government Order No. 98-2020 and, secondly,

because, following the issuance of Government Order No. 98-2020, it dismissed the

application as it had allegedly become moot and thus did not hear the violation of the right

to reparation.

13.28 The Committee also notes that the authors add that violations related to lack of access

to justice are more serious for members of Indigenous Peoples, who suffer greater

discrimination and exclusion.

13.29 The Committee also notes the State Party’s argument that articles 2 (3) and 14 (1) of

the Covenant were not violated because the rulings issued during the amparo proceedings

49 Chitay Nech et al v. Guatemala, Judgment, 25 May 2010, para. 147; The Kaliña and Lokono peoples

v. Suriname, Judgment, 25 November 2015, para. 130; and Members of Chichupac Village and

Neighbouring Communities of the Municipality of Rabinal v. Guatemala, para. 176.

50 See also the American Declaration on the Rights of Indigenous Peoples, article XIII.

51 Anthropological expert report by Aura Cumes.

52 Ibid.

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have been duly implemented, and because the decision not to uphold a claim in relation to

preventive amparo does not amount to a denial of justice.

13.30 The Committee recalls its general comment No. 31 (2004), which states that

article 2 (3) of the Covenant requires States Parties to provide an effective remedy to

individuals whose Covenant rights have been violated. Furthermore, the Committee recalls

its jurisprudence according to which access to justice remains illusory if a final and binding

judicial decision remains ineffective to the detriment of a party,53 and, in particular, notes

that, if the reparation agreed with the national authorities is not made, the obligation to

provide an effective remedy, which is central to the efficacy of article 2 (3), is not

discharged.54

13.31 The Committee also concurs with the Inter-American Court of Human Rights, which

has established, in relation to article 25 (2) (c) of the American Convention on Human Rights,

which mirrors article 2 (3) (c) of the Covenant, that “State responsibility does not end when

the competent authorities issue the decision or judgment. The State must also guarantee the

means to execute the said final decisions”.55 Thus, in order to comply with the right to access

to justice, it is not sufficient that a final ruling be delivered during the respective proceeding

or appeal, declaring rights and obligations, or provided protection to certain persons. It is also

necessary that there are effective mechanisms to execute the decisions or judgments, so that

the declared rights are protected effectively. The execution of such decisions and judgments

should be considered an integral part of the right to access to justice, understood in its

broadest sense, as also encompassing full compliance with the respective decision. The

contrary would imply the denial of this right.56 The Committee notes in particular that the

fact that some determinations and decisions have to be made in order to comply with the

orders of the courts is not a reasonable justification in the face of a lengthy delay in the

enforcement of a final judgment.57 In addition, “budget regulations may not be used as an

excuse for many years of delay in complying with the judgments”.58

13.32 The Committee notes that, in 2016, the Amparo Court admitted the application for

amparo against the National Reparations Commission for the stoppage of reparation

measures, ordering the Commission to “take the necessary administrative and financial steps,

within 30 days, … to fulfil each of the objectives of the National Reparations Programme so

that it can continue to assist the victims of the internal armed conflict, for whom it was

established”. The Committee notes, however, that the objectives of the National Reparations

Programme have not yet been fulfilled. The authors of the tenth communication in particular

have not received any response to their requests for financial reparations submitted under the

National Reparations Programme 20 years ago. The authors of the first nine communications

are still waiting for their houses to be built, more than 14 years after the undertaking made

by the State Party, owing to a lack of budgetary resources, as acknowledged by the State

Party itself.59 Given that the right of access to a court would remain illusory if a final and

binding judicial decision remained ineffective,60 the Committee is of the opinion that the

failure to implement decision CNR-RM-10-2011 constitutes a violation of the rights of the

authors of communications Nos. 4023/2021–4031/2021 under article 2 (3) (c) of the

Covenant, interpreted in the light of article 37 of the United Nations Declaration on the Rights

of Indigenous Peoples, and read in conjunction with article 14 (1) of the Covenant.

Furthermore, the Committee considers that the facts before it disclose a violation of the rights

53 Murodov v. Tajikistan (CCPR/C/124/D/2826/2016 and CCPR/C/124/D/2826/2016/Corr.1), para. 7.2.

54 Chakupewa et al. v. Democratic Republic of the Congo (CCPR/C/131/D/2835/2016), para. 6.2.

55 Established case law since Baena Ricardo et al. v. Panama, para. 79.

56 Kichwa Indigenous People of Sarayaku v. Ecuador, Judgment, 27 June 2012, para. 263.

57 See Chakupewa et al. v. Democratic Republic of the Congo; Inter-American Court of Human Rights,

Acevedo-Jaramillo et al. v. Peru, Judgment, 7 February 2006, para. 269.

58 Acevedo-Jaramillo et al. v. Peru, para. 225.

59 Presidential Commission on Peace and Human Rights, State report on human rights enforcement in

Guatemala, 2022 (cited in the 2022 annual report of the Inter-American Commission on Human

Rights, chap. IV.b Guatemala, para. 112, footnote 182). See

https://www.oas.org/en/iachr/docs/annual/2022/Chapters/10-IA2022_Cap_4B_GU_EN.pdf.

60 Chakupewa et al. v. Democratic Republic of the Congo, para. 6.3.

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GE.25-07387

17

of the authors of the tenth communication under article 2 (3) (c) of the Covenant, read in

conjunction with article 14 (1) of the Covenant.

14.

The Committee, acting under article 5 (4) of the Optional Protocol, is of the view that

the information before it discloses a violation by the State Party of article 12, read alone and

in conjunction with articles 7, 17, 23, 24 and 27 of the Covenant, and of article 2 (3) (c) of

the Covenant, read in conjunction with 14 (1), in respect of the authors of the first nine

communications (communications Nos. 4023/2021–4031/2021). In addition, the Committee

is of the view that the information before it discloses a violation by the State Party of

article 2 (3) (c), read in conjunction with article 14 (1), of the Covenant, in respect of the

authors of the tenth communication (No. 4032/2021).

15.1

Pursuant to article 2 (3) (a) of the Covenant, the State Party is under an obligation to

provide the authors with an effective remedy. This requires it to make full reparation to

individuals whose Covenant rights have been violated. Accordingly, and appreciating the

State Party’s proposal to initiate a friendly settlement procedure (see para. 11), the State Party

is under an obligation to (a) adequately compensate the authors for the damage they have

suffered; (b) build the housing for the authors of the first nine communications according to

the agreed specifications; (c) make financial reparation to the authors of the tenth

communication (No. 4032/2021), in accordance with the obligations set out in the National

Reparations Programme; (d) provide the authors of all 10 communications with the necessary

medical and psychological and/or psychiatric treatment; (e) search for and, if required, hand

over the remains of the disappeared family members to the authors so that they can perform

death rites in accordance with their Indigenous cultures as a means of partially repairing the

violation of their right to integrity of the person; (f) provide scholarships for the authors and

their children who wish to avail themselves of this benefit; and (g) carry out a public act of

acknowledgment of international responsibility in which the State Party should apologize for

the violations found in the present communications, under the conditions agreed with the

authors.

15.2

The State Party is also under an obligation to take steps to prevent similar violations

from occurring in the future. In this regard, the Committee requests the State Party to ensure

that the National Reparations Programme has all the means necessary to carry out its mandate

to fully compensate the victims of the internal armed conflict.

16.

Bearing in mind that, by becoming a Party to the Optional Protocol, the State Party

has recognized the competence of the Committee to determine whether there has been a

violation of the Covenant and that, pursuant to article 2 of the Covenant, the State Party has

undertaken to ensure to all individuals within its territory and subject to its jurisdiction the

rights recognized in the Covenant and to provide an effective and enforceable remedy when

it has been determined that a violation has occurred, the Committee wishes to receive from

the State Party, within 180 days, information about the measures taken to give effect to the

present Views. The State Party is also requested to publish the present Views and to have

them widely disseminated, specifically in a widely circulated newspaper and in the Mayan

K’iche’, Mayan Ixil and Mayan Kaqchikel languages.

CCPR/C/143/D/4023/2021-4032/2021

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Anexo I

[Español únicamente]

Voto particular (concurrente) de Rodrigo A. Carazo,

miembro del Comité

1.

La calidad y alcance de la resolución marca un hito en los anales de la jurisprudencia

del Comité.

2.

Se trata, no debe olvidarse, de una petitoria de reparación planteada por los autores,

víctimas ante la constatación de graves violaciones de los derechos humanos de un enorme

contingente de personas y de Pueblos Indígenas. Observo que no se hace mención al

requerimiento de que se construya en el área de “reasentamiento” un centro de salud

plenamente equipado y dotado de recursos, según se solicita (véase el párr. 7.10). Pero para

mí es más importante, en el extremo de reparación y no repetición (véase el párr. 15.2), el

hecho de que el dictamen habría debido establecer que se resarciese no solamente “a las

víctimas del conflicto armado interno” sino a las poblaciones autóctonas radicadas en el

territorio del Estado Parte que durante siglos han sufrido un extendido menoscabo de sus

derechos fundamentales. No hubiera sobrado hacer un llamamiento abierto a la cooperación

internacional a que colaborase generosamente para la satisfacción de las obligaciones que se

imponen al Estado Parte (sé que habrá “puristas” que consideren improcedente tal llamado

por carecer de precedentes, a lo que contesto que “por algún lado hay que concretar procesos

de justicia del alcance que este resarcimiento habría de llegar a tener”).

3.

En cuanto a los elementos propios del dictamen, perfectamente hilvanado (y no

convencional), agrego que habría sido totalmente perfecto de no incurrir en el error que

recoge el párr. 13.11 al declarar inadmisible la pretensión de que se declare también una

violación del artículo 12 del Pacto, leído conjuntamente con el artículo 9 por no haberse

demostrado las violaciones a dichos artículos (que para nada son supuestas sino reales) por

el no retorno a sus territorios tradicionales. En ello radica, insisto, el quid de la cuestión: bajo

el lema de “tierra arrasada”, los pueblos tradicionales de los que son parte los autores fueron

desplazados por la fuerza de sus territorios ancestrales. Eso está ampliamente demostrado y

fundamentado en la historia y está bien recogido y presentado para los efectos de las

comunicaciones consideradas.

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Annex II

[English only]

Joint opinion of Committee members Yvonne Donders and

Laurence R. Helfer (concurring)

1.

The Committee’s Views mark an important milestone for Indigenous Peoples, such

as the Maya communities in this case, who have been forcibly displaced from their traditional

lands. We fully agree with the Committee that Guatemala has violated numerous provisions

of the Covenant with respect to community members forced to flee their lands, their displaced

children, and their children born after the displacement. We write separately to emphasize

several aspects of the intertemporal consequences of forced displacement of Indigenous

Peoples, including violations of the rights of future generations and the appropriate remedies

for such violations.

2.

International human rights mechanisms recognize that forced displacements from, and

environmental damage to, the traditional lands of Indigenous Peoples create harms that

adversely affect both current and future generations. An early articulation of this principle

appears in Mayagna (Sumo) Awas Tingni Community v. Nicaragua, a 2001 judgment of the

Inter-American Court of Human Rights involving threats to the petitioners’ ancestral lands

from State-granted logging concessions.1 The Court recognized the “material and spiritual

element” of the lands, which Indigenous populations “must fully enjoy, even to preserve their

cultural legacy and transmit it to future generations”.2 More recently, that same Court found

that the massacre and forced displacement of an Indigenous community in Guatemala created

harms to the “surviving victims”, which persisted for nearly four decades “due to the severe

suffering and psychological harm they have endured, exacerbated by the intergenerational

transmission of the psychosocial effects of the gross human rights violations suffered”.3 In

addition, multiple United Nations human rights mechanisms have recognized that violations

of the rights of Indigenous Peoples have intertemporal effects that adversely impact their

ability to transmit their cultural identity and cultural practices to future generations (see

para. 13.19 of the Committee’s Views).4

3.

In this case, the Committee appropriately recognizes that children born when their

parents were already refugees in the capital should also be considered victims, since they

suffer transgenerational harm (para. 13.16). But what about the offspring of those children or

their progeny? Should they too be considered victims? Stated differently, how far into the

future do violations of the human rights of members of Indigenous Peoples persist?5 The

authors and third-party interveners assert that the violations of the Covenant extend to

grandchildren and to subsequent generations (see paras. 7.8, 8.4 and 10.3), but the Committee

in this case wisely goes no further in time than the children who were born displaced

(para. 13.21).

1 Inter-American Court of Human Rights, Mayagna (Sumo) Awas Tingni Community v. Nicaragua,

Judgment, 31 August 2001.

2 Ibid., para. 149.

3 Inter-American Court of Human Rights, Village of Los Josefinos Massacre v. Guatemala, Judgment,

3 November 2021, para. 124.

4 See, e.g., A/HRC/51/28; Committee on the Elimination of Discrimination against Women, general

recommendation No. 39 (2022) on the rights of Indigenous women and girls, paras. 21, 40 and 54;

M.E.V. et al v. Finland (CRC/C/97/D/172/2022), paras. 9.2 and 9.14; and Matson et al. v. Canada

(CEDAW/C/81/D/68/2014), para. 18.3. See also Billy et al. v. Australia (CCPR/C/135/D/3624/2019),

para. 8.14 (in which the Committee found a violation of article 27 of the Covenant due to “the State

Party’s failure to adopt timely adequate adaptation measures to protect the authors’ collective ability

to maintain their traditional way of life and to transmit to their children and future generations their

culture and traditions”).

5 See, e.g., Maastricht Principles on the Human Rights of Future Generations; and Lydia Slobodian,

“Defending the future: intergenerational equity in climate litigation”, The Georgetown Environmental

Law Review, vol. 32, No. 3 (2020).

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4.

If and when the Committee considers these difficult questions, it can glean further

insights from the case law of the Inter-American Court of Human Rights. As previously

noted, that Court has endorsed the principle of intergenerational harm from human rights

violations committed against Indigenous Peoples. However, it has not (as far as we are aware)

recognized the victim status of descendants born subsequently, nor has it awarded pecuniary

damages to those descendants.6 Instead, it has ordered States to provide collective non-

pecuniary remedies to Indigenous communities as a whole. For example, in Yakye Axa

Indigenous Community v. Paraguay, the Court held that displacement not only harmed

existing community members but also future generations because the community’s cultural

identity is deeply tied to their ancestral territory.7 The Court ordered the State to create “a

community development fund and program” that included “education, housing, agricultural

and health programs for the benefit of the members of the Community”.8

5.

In awarding remedies in this case, the Committee requires the State Party to

adequately compensate the authors for the damage they have suffered (para. 15.1). In our

view, this obligation applies both to the members of the Maya communities who were

forcibly removed from their traditional lands and to their children born after the displacement.

Those victims should also be accounted for in the non-pecuniary reparations, not only the

educational scholarships (where children are explicitly mentioned), but also, for example, the

construction of housing and provision of medical and psychological treatment (para. 15.1).

The same approach applies to the guarantee of non-repetition: providing the National

Reparations Programme with all the means necessary to carry out its mandate (para. 15.2).

Lastly, all of these remedies should take into account the customs, traditions, rules and legal

systems of the Indigenous Peoples concerned and be implemented with their meaningful

participation.9

6.

The violent displacement of the Maya communities in Guatemala has resulted in

profound and enduring violations of their individual and collective rights. It has not only

uprooted the communities from their ancestral lands but also severed vital cultural, spiritual

and social ties that provide the foundation of Indigenous identity and self-determination. The

Maya children born into displacement in this case continue to suffer a loss of language,

tradition and belonging. The harms they experience also risk perpetuating cultural erosion

across generations. The material and temporal scope of these harms make it imperative for

the State Party to adopt without delay comprehensive and culturally grounded remedies to

ensure the communities’ survival.

6 See, e.g., Inter-American Court of Human Rights, Members of Chichupac Village and Neighboring

Communities of the Municipality of Rabinal v. Guatemala, Judgment, 30 November 2016, para. 327

(awarding specified pecuniary and non-pecuniary damages to “the mothers, fathers, sons and

daughters, spouses, and permanent partners, and … the brothers and sisters of the victims”) and

Village of Los Josefinos Massacre, para. 174 (awarding damages to the same categories of victims).

See also Stanisław Krawiecki, “Towards a new standard for assessing compensation in cases of

collective human rights violations”, Harvard International Law Journal, vol. 63, No. 1 (May 2022).

7 Inter-American Court of Human Rights, Yakye Axa Indigenous Community v. Paraguay, Judgment,

17 June 2005, para. 203.

8 Ibid., para. 205. See also Inter-American Court of Human Rights, Sawhoyamaxa Indigenous

Community v. Paraguay, Judgment, 29 March 2006, paras. 222–224; and Maastricht Principles on the

Human Rights of Future Generations, principles 7 (a), 30 and 33.

9 United Nations Declaration on the Rights of Indigenous Peoples, art. 40. See also Angel Gabriel

Cabrera Silva, “The right to consult ourselves: conceptualizing the proactive function of the right to

free, prior, and informed consent”, Harvard Human Rights Journal, vol. 36, No. 1 (2023).

CCPR/C/143/D/4023/2021-4032/2021

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Annex III

[English only]

Individual opinion of Committee member Hélène Tigroudja

(concurring)

1.

I fully agree with the findings of the Committee in this historic communication dealing

with grave, systematic and massive violations of the human rights of members of the Maya

communities and Peoples committed by Guatemala during the internal armed conflict in the

1980s. These violations have been qualified by the Inter-American Commission on Human

Rights and domestic tribunals as acts of genocide. In this regard, I agree with the remarks

made by my colleague Carlos Ramón Fernández Liesa in his individual opinion on the

present Views (see annex IV). My opinion aims to highlight two legal points raised by the

right to security (art. 9 of the Covenant) and the intergenerational dimension of the violations

committed by Guatemala and analysed by the Committee for the first time in its case law,

under article 24 of the Covenant.

2.

Regarding the right to security claimed by the authors (para. 3 of the Committee’s

Views), the authors did not provide sufficient elements to allow the Committee to analyse

their claim on the merits. Therefore, I agree with the conclusion to reject this claim for lack

of substantiation, especially considering that the authors did not elaborate on their right to

return to their lands in a secured environment (paras. 13.10 and 13.11). However, this does

not mean that in this kind of context of internal or international armed conflict or post-conflict

situation, the State has no obligation based on article 9. On the contrary, there is an increasing

development of the right to individual and collective security breached by the State when

peaceful conditions of life of individuals are directly or indirectly caused by State authorities

and armed forces. This is well analysed by the African Commission on Human and Peoples’

Rights in its recent decision in IHRDA et al. v. Democratic Republic of the Congo.1 The

Commission relied on the Committee’s general comment No. 35 (2014) on liberty and

security of person (art. 9 of the Covenant) to conclude that, by creating a violent context and

disrupting a normal and peaceful life, the military forces of the Democratic Republic of the

Congo were responsible for the violation of the right to security of the civilians affected by

the fight against the Mouvement du 23 Mars. This dimension of “security” under article 9

was not claimed in the present communication. Nevertheless, this could be developed in

future cases dealing with armed conflicts or other emergency situations, stressing – as the

African Commission does – the positive and negative obligations the right puts on the State:

obligation not to harm the security of civilians by creating a violent environment (negative

obligation) and obligations to prevent and protect the disruption of the security of peoples

(positive obligation).

3.

As far as article 24 is concerned (paras. 13–16 ff. of the Views) on the

intergenerational harm suffered by the children of the persons displaced and those born after

the displacement, this is probably the most innovative aspect of these Views and a critical

added value to what late Judge Antônio Cançado Trindade used to call the intertemporal

dimension of the law. This is also particularly welcome at a time when peoples, communities

and States are reflecting upon reparation for past crimes such as genocides committed before

the adoption of the 1948 Convention on the Prevention and Punishment of the Crime of

Genocide, for slavery and for atrocities committed during the colonial/decolonial period by

European States. It is not a coincidence that there is increasing use of this concept, not only

in human rights law, but also in international criminal law, as referred to by the Committee

(para. 13.19). However, to date, the jurisprudence of the International Criminal Court has

mainly focused on intergenerational harm caused by sexual violence such as rape, forced

marriage and forced pregnancy, while the Committee’s approach opens a wider door in

favour of children and grandchildren entitled to claim a direct victims’ standing for the harm

initially inflicted on their parents or grandparents. This might impact future cases not only

1 African Commission on Human and Peoples’ Rights, IHRDA et autres v. République Démocratique

du Congo, communication 700/18, decision of 24 July–2 August 2024 (in French only).

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GE.25-07387

dealing with forced displacement of persons or sexual violence, but also climate change-

related litigation, for instance.

4.

This step could raise the issue of the limits and scope of the intergenerational harm

concept and beyond that, the Committee’s ratione temporis jurisdiction and the limits of

States’ legal accountability for past crimes. However, this question must be solved on a case-

by-case basis, depending on the factual and legal circumstances of each case. I am satisfied

that in the present case, dealing with grave violations of rights that have lasting impacts on

the life of the survivors, the Committee has solved the admissibility question of its ratione

temporis jurisdiction in such a creative and pro homine way 2 and on the merits, has

interpretated the Covenant not only in an evolutionary way (para. 13.8) but, using the

valuable third-party interventions submitted, it has adopted a firm and clear stance in favour

of intergenerational justice for survivors of genocidal actions.

2 CCPR/C/136/D/R.4023/2021-4032/2021.

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GE.25-07387

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Anexo IV

[Español únicamente]

Voto particular (concurrente) de Carlos Ramón Fernández

Liesa, miembro del Comité

1.

Concuerdo con el sentido y conclusiones del dictamen, en el que se realizan

interpretaciones innovadoras como la relativa al daño intergeneracional. Pero deseo precisar

que el desplazamiento forzoso del pueblo maya es consecuencia de un genocidio, no de un

crimen de lesa humanidad. Aunque el Estado Parte lo haya calificado así, eso no es valladar

para su correcta calificación jurídico-internacional (art. 3 del proyecto CDI de 2001), como

hecho histórico que también un tribunal de Guatemala (el de Mayor Riesgo B 26) ha

reconocido como genocidio (26-IX-2018).

2.

Cuando se aprobó el Pacto en 1966, este no se refería explícita ni implícitamente a los

Pueblos Indígenas (en los artículos 1 o 27), si bien el Comité de Derechos Humanos lo

interpretó pronto de forma inclusiva y, más recientemente, se ha producido una eclosión del

derecho internacional de los Pueblos Indígenas. La interpretación del Pacto debe hacerse de

buena fe conforme al texto en su contexto, objeto y fin. Las interpretaciones que hace el

Comité, con las que concuerdo, pueden y deben fundamentarse en elementos suplementarios

dado que la Declaración de las Naciones Unidas sobre los Derechos de los Pueblos Indígenas

de 2007 no es per se vinculante ni genera obligaciones de alcance erga omnes in toto. Una

declaración de esta naturaleza puede tener un efecto generador (de una nueva norma),

cristalizador (de una costumbre) o clarificador (de una norma ya existente); pero no refleja

el derecho positivo en muchas disposiciones, donde se mezcla el soft law y el hard law, por

lo que se precisa una construcción jurídica basada en fundamentos complementarios.

3.

Cabe traer a colación el derecho regional americano que se ha conformado en las

últimas décadas en América Latina, continente motor en el derecho internacional de los

Pueblos Indígenas, lo que se ha reflejado en el denominado “nuevo constitucionalismo

latinoamericano”, en el que se reconocen los derechos de los Pueblos Indígenas al máximo

nivel jurídico y, además, se han reformado las instituciones y las políticas públicas, superando

previas aproximaciones asimilacionistas y discriminatorias. Debe también invocarse la

Declaración Americana sobre los Derechos de los Pueblos Indígenas (2016), que no solo es

innovadora sino que es específicamente aplicable a la región y a Guatemala y constituye un

“marco autorizado para la interpretación del Pacto”. Es importante también destacar la

jurisprudencia abundante de la Corte Interamericana de Derechos Humanos en el desarrollo

del derecho de los Pueblos Indígenas, que lo ha convertido en una faro que ilumina esta

cuestión. Asimismo, cabe mencionar la existencia del Fondo para el Desarrollo de los

Pueblos Indígenas de América Latina y el Caribe, única organización internacional indígena

en el mundo; o el hecho de que el único tratado internacional de pueblos indígenas (Convenio

sobre Pueblos Indígenas y Tribales, 1989 (núm. 169) de la Organización Internacional del

Trabajo) haya sido ampliamente ratificado por los Estados de América Latina y, entre estos,

por los que tienen población indígena significativa, mientras que solo lo ha sido por un Estado

africano, ningún asiático y cuatro europeos, la mayoría de los cuales carecen de población

indígena. En este contexto, no se pueden realizar interpretaciones universales sin tener en

cuenta la realidad jurídica regional, oponible a Guatemala al interpretar el Pacto, pues ello

no sería acorde con el camino hermenéutico del artículo 31 de la Convención de Viena sobre

el Derecho de los Tratados de 1969. La realidad jurídico-política regional ha permitido la

formación de normas consuetudinarias regionales en América Latina sobre los Pueblos

Indígenas con vocación de universalización. Se trata de normas consuetudinarias regionales

relacionadas con el derecho de los Pueblos Indígenas a no ser objeto de traslados forzosos,

con el derecho a su vida cultural y con los derechos territoriales, todos ellos relacionados con

el caso que nos ocupa y que generan obligaciones jurídicas a Guatemala.

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4.

El derecho a la vida cultural, consagrado en el artículo 27 del Pacto, debe interpretarse

a la luz de la Declaración de las Naciones Unidas sobre los Derechos de los Pueblos

Indígenas, pero también de otros instrumentos (el Pacto Internacional de Derechos

Económicos, Sociales y Culturales; la Declaración sobre los Derechos de las Personas

Pertenecientes a Minorías Nacionales o Étnicas, Religiosas y Lingüísticas, de 1992;

Declaración sobre la Diversidad Cultural y la Convención sobre la Protección y Promoción

de la Diversidad de las Expresiones Culturales, de la Organización de las Naciones Unidas

para la Educación, la Ciencia y la Cultura; la Declaración sobre la Raza y los Prejuicios

Raciales, de 1978; la Carta Africana de Derechos Humanos y de los Pueblos, y la Declaración

de los Principios de la Cooperación Cultural Internacional, entre otros). El derecho a la

identidad cultural es el derecho síntesis por excelencia de los Pueblos Indígenas y remite a

otros vinculados con la lengua, la educación, la cultura, la religión, las creencias o el

patrimonio cultural.

5.

Los Pueblos Indígenas tienen un concepto holístico de cultura y un concepto propio

de derechos humanos que debe considerarse al interpretar el Pacto, realizando un ajuste que

permita un marco cognitivo sobre el derecho internacional que no se base exclusivamente en

la cultura occidental y que se abra al respeto a la diversidad cultural, al diálogo de saberes

entre culturas y civilizaciones diferenciadas y que, ello no obstante, parta del respeto

escrupuloso al núcleo duro del derecho internacional de los derechos humanos, en el que no

cabe aceptar geometrías variables ni particularismos culturales, al constituir un lenguaje

común para toda la humanidad.