Anatomy of the Accords and levels of compliance
Keywords: | | | | | Guatemala
Of all the Latin American conflicts, the internal war in Guatemala was one of the longest and most costly in loss of human lives. The conflict lasted 36 years, between 1960 and 1996, and it is estimated that some 200,000 persons died. At least 400 rural communities were destroyed and by 1982 over one million persons had either been displaced or become refugees, a figure that for the 1980s amounts to one Guatemalan in seven.
This confrontation stretched out through various governments and insurgent organizations — which toward the end had come together in the Guatemalan National Revolutionary Unity (URNG) — and was waged without observing international humanitarian law. Consequently, massive and grave human rights violations occurred during the conflict.
In the last decade and a half of the 20th century, international and sub-regional changes generated by the end of the Cold War and the Esquipulas process in Central America opened windows of opportunity for dialogue and negotiation that concluded the regional conflict and the internal wars in Nicaragua and El Salvador, and began the search for peace in Guatemala.
The early preliminary contacts between the government and the URNG took place in 1987, negotiations began in 1991 and concluded in 1996, proceeding through the first four governments of the country’s democratic transition.
From 1994 on, conversations were facilitated by a representative of the Secretary-General of the United Nations and the commitments reached were monitored by an entity of that international body.
The process produced 13 Accords, nine of which were substantive or of the so-called “long agenda”, five were operational and came out of the “short agenda”, and one was of an ad-hoc nature, a summary. The list of accords is as follows (1):
Guatemalan Peace Accords :
|Procedural Accord for the search for peace through political means. April 26, 1991.||Operational. Establishes the negotiation format.|
|General thematic agenda accord. April 26, 1991.||Operational. Agenda.|
|Framework accord on democratization through political means, known as the Querétaro Accord. July 25, 1991.||Substantive. Defines the democratic project and accepts a negotiated political solution.|
|Framework accord for the renewal of negotiations between the Government of Guatemala and the Guatemalan National Revolutionary Unity. January 10, 1994.||Operational. Establishes a new format and agenda. Sets up the Civil Society Assembly and calls for United Nations mediation.|
|Global accord on Human Rights. March 29, 1994.||Substantive. Commitments on human rights and United Nations verification.|
|Accord for the resettlement of populations uprooted by the armed conflict. June 27, 1994.||Substantive. Strategy and guarantees for reintegration and resettlement of population displaced by the war.|
|Accord for the establishment of the Commission for Historic Clarification of the human rights violations and the acts of violence that have caused suffering to the Guatemalan population, known as the Commission for Historic Clarification. June 23, 1994.||Substantive. Creates the Truth Commission.|
|Accord on the identity and rights of Indigenous Peoples. March 13, 1995.||Substantive. Recognizes the rights of Indigenous Peoples, confronts discrimination and establishes parity commissions between Indigenous Peoples and the state for follow through.|
|Accord on Socio-economic aspects and the agrarian situation. May 6, 1996.||Substantive. Commitments for democratization, social development and participation, modernization of the state, fiscal reform and reform in agriculture. Establishes parity commissions for follow through.|
|Accord on strengthening civilian power and on the role of the army in a democratic society. September 19, 1996.||Substantive. State reform, participation of women, re-conversion of the army and the police, dissolution of the Civil Defence Patrols and other paramilitary corps.|
|Accord on constitutional and electoral reform. December 7, 1996.||Substantive-operational. Calls for specific constitutional reforms and changes to the Electoral Law considered necessary for compliance with commitments set up in other accords.|
|Accord on incorporation of the URNG to the legal regime. December 12, 1996.||Operational. Framework for the disarmament and reincorporation of the URNG.|
|Accord on the schedule for the implementation and verification of the Peace Accords. December 29, 1996.||Operational. Four-year schedule for compliance with the commitments.|
|Accord for Firm and Lasting Peace, December 29, 1996.||Substantive. Summarizes all of the Accords.|
Analysis of the Accords should distinguish between content and implementation. The content of the Accords is noteworthy in that, as a whole, these understandings of peace in Guatemala surpass other experiences in the western hemisphere and even in other parts of the world in terms of both depth and breadth. In addition to dealing with the necessary concrete aspects to end the war, these Accords include a series of total reform proposals that encompass political, economic, social and cultural relations in Guatemala. The agreements go so far as to attempt to resolve problems that originated in the nation’s early history, which is the case of inter-ethnic relations. There is the assumption of a strong, demilitarized state with sound fiscal capacity that furthers development and growth.
In terms of gender issues, it should be noted that the “Women’s Sector” was organized within the Civil Society Assembly, the gathering of social sectors that developed a parallel debate on the contents of the peace talks and generated suggested inputs for the Accords as they were being discussed. Many of these suggestions were incorporated in the final documents, including item 29 of the Schedule Accord that establishes the National Forum of Women. However, affirmative action proposals, such as setting up electoral quotas for women, did not make it into the final documents.
Agreements on gender included in the Peace Accords
|Socio-economic and agrarian situation||Guarantee to implement equality of opportunity in educational and training programs; equal access to housing by eliminating obstacles and impediments that affect women in terms of rent, credit and construction; national health programs for women; the rights of women to work, organize and participate.|
|Resettlement of uprooted populations||Eliminate all forms of de facto or legal discrimination of women in terms of access to land, housing, credit and participation in development projects. A gender focus will become part of all government policy, programs and activities.|
|Identity and rights of Indigenous Peoples||Recognizes the specific vulnerability and defencelessness of Indigenous women in the face of discrimination as women and as Indigenous. Calls for legislation that makes sexual harassment a crime and for additional penalties when the victim is Indigenous. Establishes the Indigenous Women’s Defence Centre.|
|Strengthening of civilian power||Strengthen opportunities for the participation of women in politics. Establishes the development of informational campaigns and educational programs that promote the rights of women to participate in politics at all levels, with equal opportunities and free of discrimination. Calls on social and political organizations to adopt policies that encourage the participation of women. Calls for respect, encouragement and legalization of women’s organizations in both rural and urban areas. Establishes that opportunities for women’s participation —both on an individual or organized level — be guaranteed in all forms of political power.|
The follow-through of the Accords included a broadly mandated United Nations verification mission, MINUGUA, and the Peace Accords Accompaniment Commission made up of representatives from government, the URNG, civil society and MINUGUA. Additionally, a network of parity — Indigenous Peoples and state representatives — and non-parity commissions was set up to promote the fulfillment of specific commitments.
A Peace Secretariat (SEPAZ) was set up by the government to oversee overall governmental compliance with the Accords. Civil society organized into numerous verification and support entities that included the so-called “departmental working tables”, a kind of provincial commissions.
In order to further appreciate the far-reaching nature of the negotiation, it should be kept in mind that the process consolidated gradually and was opposed by certain civilian and military power groups opposed to peace, referred to as spoilers. The main reasons for opposition were the belief that unnecessary concessions were being made to the militarily inferior insurgents, or disagreement with the reforms that were being negotiated.
It is not easy to evaluate the level of compliance with the Accords, as it would require a complex process of systematizing objectives, projected outcomes, components and ranked results of the hundreds of derivative obligations. The schedule was an attempt to resolve this complexity by condensing the political obligations into some 300 commitments to be fulfilled in a four-year period. In retrospect it seems amazing that anyone believed it was possible to accomplish a transformation of those dimensions in such a short period of time.
In any case, monitoring has been based on compliance with the content set forth in the schedule. However, the content of these directives varies considerably, ranging from very specific — including quantities or percentages to be achieved — to phrasing that is open to different interpretations.
As part of its mandate, MINUGUA issued regular reports on the overall situation of the Accords, the specific human rights situation, and other noteworthy issues. The Accompaniment Commission also issued reports, when and if members were able to reach a consensus. For their part, numerous civil society groups issued their own views on compliance. The strong level of interest and influence that the international community maintained in the process has also been noteworthy.
Four key variables can be considered central to an overall assessment of implementation: the political will of governments, the population’s sense of ownership of the Accords, the support of the international community, and the availability of economic resources. We also need to distinguish between operational and substantive commitments.
The two operational commitments on procedures and agenda were met without major problems. The operational commitment on demobilization and reinsertion is probably the best implemented: the URNG gave up its weapons and demobilized in a process supervised by 188 United Nations blue beret observers who included 145 military personnel and 43 police officers from 18 countries. The insurgents reintegrated into civilian life, set up foundations and think tanks, and the political party they formed obtained significant electoral results in the two elections following the peace agreement.
It should also be noted that security guarantees were observed and that, other than a few isolated incidents, there have not been acts of violence against demobilized insurgents. Among the shortcomings of the process is that projects designed for the sustainability of the programs were not fully implemented.
In general, the overall assessment of the demobilization, disarmament and reintegration (DDR) triad is positive, although the last component can be considered incomplete (2).
The schedule agreement must be regarded with a different set of criteria. The assessment carried out by MINUGUA and the Accompaniment Commission at the end of the four-year period determined that there had been partial compliance. Some commitments had been fully implemented; others were still in process and a third block had not been met at all. The various actors in the peace process have failed to agree on how to measure compliance percentages.
In the course of the process it became evident that the fulfillment of some commitments generated new ones of a follow-through nature, which have been deemed second-generation commitments. In 2002 the Accompaniment Commission established a new schedule for what remained to be done and assigned a new four-year period (3).
The Schedule AgreementThe government was responsible for fulfilling 170 of the 179 commitments set forth in the Schedule Agreement. MINUGUA estimated that by the end of 1999 only 63 of these had been entirely fulfilled while 103 remained to be completed. At the end of 2000 the Accompaniment Commission assessed that 63 obligations were pending and that 56 second-generation commitments had been added to the list. The second schedule included a total of 119 obligations to be completed by the end of 2005.
The Accord on constitutional reforms, which deals with substantive issues, is operational. It has not been fulfilled through no fault of the parties but rather because of the defeat of the constitutional referendum (Consulta Popular) that called for voter approval of the changes.
In terms of the substantive content of the Accords, the variables mentioned above can be applied in the following manner:
Governmental political will may not be the only variable but it is a decisive one because most of the obligations corresponded to Executive Branch decisions, and to a lesser extent to other branches of government or the URNG.
The three administrations that have held office since the peace agreements were signed, namely Alvaro Arzú (1996-1999), Alfonso Portillo (2000-2003) and the current Oscar Berger (2004-2008), all made public commitments to comply with the peace agreements and took measures to incorporate them as part of their policies. While advances could be noted under all three administrations, what has not been accomplished relates to the will to adopt politically costly decisions and eventually engage in confrontations with powerful interest groups, some legal and other of a de facto nature.
In the case of Guatemala, part of the operational commitments was at odds with the interests of economically powerful groups that have traditionally held the state captive. These authoritarian groups espouse conservative and racist ideologies and have morphed into what is now called “parallel powers”.
This combination of spoilers, with strong media, economic and violent means at their disposal, was not to be easily put down. While it is not possible to adequately measure the will of successive governments to confront these groups, it is possible to say that the will has existed but within limits.
Realization of the envisioned objectives requires that the population take ownership of the peace process. This appears to have been only partially achieved. While precise indicators are hard to come by, various polls indicate an unsatisfactory level of familiarity with the Accords, although there appears to be a general trend in support of the idea of peace (4).
It does not appear that the envisioned objectives were communicated throughout the country despite the fact that the departmental tables were an attempt to engage the local level.
On the bright side, numerous civil society actors have been deeply and persistently engaged with the Accords. Political parties continue to avow their formal acceptance of the agreements and the Accords are part of the major national debates. However, citizens do not appear to have incorporated the peace agenda into their daily concerns, nor have the media or the educational system.
The spoiler sector, which is hard to quantify, has actively opposed the peace process through legal and political means, by influencing public opinion and even through violence. These groups can be held largely responsible for the defeat of the constitutional reform referendum held on May 16, 1999. (5)
The international community maintained a permanent interest in the process. Above and beyond the Consultative Group meetings, most international parties introduced the issue of compliance through their bilateral relationship. Depending on the space allowed by the host government, many diplomatic representatives and international bodies at times became actively influential. However, with time the level of support began to diminish. MINUGUA’s mandate, initially set to end in 2000, was extended an additional four years and came to a close in December 2004.
The estimated cost and the availability of economic resources are also factors in implementing the Accords. In this sense the Accords have a clear economic logic. In order to achieve social development and to comply with the public expenditure goals required by the peace commitments, the aim was to reach a steady six-per-cent growth rate by 1999 and to increase the tax burden to 12 per cent of GDP by the year 2000.
The goals set forth in the Accords were meant to increase expenditures on health, education, public safety and the judiciary by 50 per cent by the year 2000, as compared to the benchmark year of 1995. There was also a goal to steadily reduce the budget of the Ministry of Defence, bringing it down to 0.66 per cent of GDP by the turn of the century (6).
The apparent logic behind these plans was that economic and social reforms, including fiscal reform, would result in economic growth and social development. However, this was not the case. Numerous internal and external factors influence economic processes, as postulated by Dow’s tenet on increasing complexity: “The more time passes from the conclusion of a peace mission, the more likely it is that any number of other extraneous factors (e.g. business cycles, famines, unusually good or bad weather, the policies of a neighbouring state, the behaviour of the first elected leaders) are actually responsible for what has taken place rather than the technology of the peace mission itself.” A goal as complex as economic growth was difficult to pursue through short-term targets (7).
Ultimately, the economic goals were not achieved and the gap became particularly evident in the last years of the schedule.
Economic Growth measured in terms of GDP
These numbers contrast unfavourably with a population growth rate that is about 2.8 per cent.
A similar problem arose in the matter of taxation income. The assumption that part of the cost of peace would be covered with national sources points to the importance of the fiscal reform called for in the Socio-economic Accord. The goal was to increase the tax burden to 12 percent of GDP, a modest goal when compared to the median tax burden in the hemisphere.
However, tax reform has been a major issue of conflict between the state and economic interest groups, and previous attempts at reform had failed because of opposition from business sectors. The Accord stipulated that a conference on a Fiscal Pact should be convened and, after numerous delays, it was called in early 2000. The Pact generated a body of agreements to increase the government’s tax income, but political difficulties once again revealed the tepid political will of the state and business, and the Pact did not fully achieve its goals (8).
After the failure to reach consensus the state implemented a taxation policy through legal reforms achieved in 2001, but paid a price in harsh confrontations with the business sector. As a result of these reforms, tax income in 2002 was the highest ever recorded at a modest 10.6 per cent. However, confrontations and legal challenges resulted in a reduction to 10.2 percent (9) by 2004 and an ongoing diminishing rate.
All of this begs the question as to what the real cost of carrying out the peace commitments is. Estimating the financial cost of the “Peace Portfolio” is a complicated undertaking. In the first Schedule Accord the government estimated costs at US$2.312 billion. At the first Consultative Group meeting held in Brussels in 1997, the amounts pledged by individual countries and multilaterals met this estimate (10). Additional pledges were added after the Special Consultative Group for the Reconstruction of Central America was convened following the destruction unleashed by tropical storm Mitch. By the end of 2001 the total amount of funds from signed agreements and in projects that were already underway came to US$3.214 billion (11).
As well, the third Consultative Group meeting, held in Washington in 2002, reviewed the peace process and pledged additional support in the amount of US$1.296 billion (12).
Even though the pledges of financial support surpassed the original estimated needs, in practice the real amounts were smaller, and actual disbursements were even smaller, for reasons that include technical difficulties on the part of Guatemala in terms of project design and lack of counterpart funds.
Thus, the state was unable to put together the resources that the Peace Portfolio required. To this must be added non-compliance with the commitments to significantly increase social spending and to reduce military expenditures to no more than 0.66 per cent of GDP. Again, these difficulties point to a limited political will.
Another important area of the peace process is the so-called Legislative Peace Agenda, the approval of legal measures required to put the Accords into practice. This Agenda has moved forward haltingly.
Advances on the Legislative Peace Agenda
|National Civilian Police Law||Reforms to the Urban and Rural Development Councils Law|
|Approval of ILO Convention # 169||General Law of Decentralization|
|Law to Dignify and Comprehensively Promote Women||Labour Code reforms|
|Law to Prevent, Punish and Eradicate Intra-family Violence||Penal sanctions for tax fraud and evasion|
|Reforms to the law regulating the General Accounting Office|
|Regulation of the Administrative Affairs Secretariat and of Presidential Security|
|Civil Service Law|
|Law for the Protection of Children and Youth|
Despite advances, by the end of 2004, it was estimated that pending legislation should include at least the following:
Peace Agenda pending legislation
Second generation reforms to the Electoral and Political Parties Law
The State General Income Budget Law
Framework Law to Institutionalize Peace
Legislation to create the Commission for the Investigation of Illegal Bodies and Clandestine Security Apparatuses (CICIACS)
Access to Information and Habeas Data Law
Legislation on Arms and Munitions
Legislation on Enterprises Specializing in Security Services and Private Investigation
Legislation to set up the General Directorate of Civilian Intelligence
Organic Law and Regulations of Congress
Penalization of aggravated sexual harassment when the victim is an Indigenous woman
The National Reparations Program Law
The National Territorial Information Centre and Real Estate Property Law
Reforms to the General Law on Communications
Classification and Release of Reserved State Information Law
Source: Catalina Soberanis, op. Cit.
The slow movement of the Legislative Peace Agenda has had an adverse effect on the rhythm of implementation of the Accords given that eight years after they were signed nearly 50 per cent of legislation necessary for their realization is still pending. This does not include the pending constitutional reforms.
(1) : Colegio de Abogados y Notarios, 1996.
(2) : For a review of the achievements and problems of the DDR in Guatemala: Wenche, Haugue and Beate Thorensen: The fate of former combatants in Guatemala. Spoilers or agents for change? (2006) WKOP Working Paper.
(3) : Rosende, 2002.
(4) : Molketin, 2001.
(5) : Jonas, 2000.
(6) : These goals are set forth in the Programación de Metas Mínimas Indicativas 1997 – 2000, and annex of the Schedule Accord, op.cit.
(7) : Downs and Stedman, 2002: 49.
(8) : Gamboa y Trentavizi, 2001.
(9) : Banco de Guatemala, 2006.
(10) : Gobierno de Guatemala, 1997.
(11) : Inter American Development Bank, 2002.
(12) : Gobierno, 2003.