Report of the Special Rapporteur on extrajudicial, summary or arbitrary executions, Mission to Guatemala, A/HRC/4/20/Add.2, February 19, 2007
Today, a number of violent phenomena afflict Guatemala, including social cleansing, the rapidly rising killing of women, lynching, the killing of persons for their sexual identity or orientation, the killing of human rights defenders, and prison violence. In some cases, the State bears direct responsibility. There is strong evidence that some acts of social cleansing – executions of gang members, criminal suspects, and other “undesirables” – are committed by police personnel. Killings by prison inmates have been facilitated by guards. In other cases, the State bears indirect responsibility. With a criminal justice system unable to achieve more than a single-digit conviction rate for murder, the State bears responsibility under human rights law for the many who have been murdered by private individuals.
11. In contrast, ordinary murders by private persons will, in most situations, constitute simple crimes and not give rise to any State responsibility (E/CN.4/2005/7, paras. 65-76). The State is obligated, however, to exercise due diligence in preventing such crimes. Once a pattern becomes clear in which the response of the Government is clearly inadequate, its responsibility under international human rights law becomes applicable. To meet its legal obligations, the State must effectively investigate, prosecute, and punish perpetrators. When such efforts prove ineffective, the State must take whatever measures are necessary to make them effective, including new legislation, training programmes, equipment, or budget allocations. The State incurs responsibility under international law insofar as any branch of Government – executive, legislative, or judicial – fails to honour the obligations that it has assumed under international law.
12. The scope of the State’s responsibility under international law is, thus, much broader than the scope of the criminal offence of “extrajudicial execution” under Guatemala’s criminal law. That criminal offence encompasses killings by agents of the State as well as killings by private persons with the authorization or acquiescence of agents of the State, but does not include murders for which impunity is conferred by Government inaction. The concept of “extrajudicial execution” under international law does include such murders accompanied by impunity and addresses the responsibility of the State rather than of individual perpetrators. Thus, regardless of the extent to which State agents may be involved, the evidence shows that the State has responsibility under international human rights law for the widespread killings of gang members; gay, lesbian, transgender, and transsexual persons; human rights defenders; women; and prison inmates (see chapter III).
13. However, while the question of whether particular killings were committed by State agents is not critical to determining the State’s responsibility under international law, it is key to determining the measures required for the State to prevent future such killings.
D. Impunity for attacks targeting people for being gay, lesbian, transgender, or transsexual
32. There has been impunity for murders motivated by hatred towards persons identifying as gay, lesbian, transgender, and transsexual. Credible information suggests that there were at least 35 such murders between 1996 and 2006.  Given the lack of official statistics and the likely reticence if not ignorance of victims’ family members, there is reason to believe that the actual numbers are significantly higher.
33. In most cases, there is no credible information regarding the identity of the murderer. In the absence of effective investigations, it cannot be said with certainty that all of these killings have been motivated by the sexual identity of the victim, but the circumstances – e.g., the killers firing from a car in an area of Guatemala city known to be frequented by transgender sex workers – often suggest this to be the case. In those cases with witnesses, both government officials and private citizens have been implicated.
34. I spoke with one individual, Sulma, who was herself attacked and whose friend was killed. On 16 December 2005, around 11.30 p.m., Paulina and Sulma – both transgender persons – were approached in a central area of the capital by four persons riding motorbikes and wearing police uniforms. Without saying a word, the four persons opened fire on them. Paulina died of her injuries in the hospital three hours later. Sulma was severely injured but survived. She was granted police protection. However, the policemen guarding her at the hospital repeatedly told her that she should stop making statements on the incident to investigators and others, as she was putting her life at risk by doing so. Uncertain whether this was well meant advice or veiled death threats, she moved to a secret location. At the same time, she successfully applied for interim measures of protection from the Inter-American Commission of Human Rights. While there is a case file concerning the lethal attack on Paulina and Sulma opened at the Prosecutor’s Office, the proceedings had not made any progress at the time of my visit to Guatemala. Even before my visit, on 10 February 2006, I had already sent a communication to the Government of Guatemala, seeking information on the investigations into this crime and the measures taken to protect Sulma. To date, I have not received a reply.
36. In practice, intolerance and discrimination is often applied with regard to multiple identities of the victim or group of victims. Many of the Special Rapporteur’s communications and urgent appeals concern cases where women suffer from aggravated discrimination with regard to their religious, ethnic and sexual identities. Women in many countries appear to be victims of double or triple forms of aggravated discrimination, owing to serious restrictions in the areas of education and employment.
link to full text of the Mission report: Misssion report-SR Extrajudicial Executions-Guatemala-2006-eng
- Jorge López Sologaistoa, Guatemala: El Rostro de la Homofobia (Organización de Apoyo a una Sexualidad Integral frente al SIDA, 2006).↵