Harvard Human Rights Journal continues its conversation with Milburn Line, executive director of the Joan B. Kroc Institute for Peace and Justice. In this section, Line discusses the indigenous legal system in the highlands of Guatemala, and its complex relationship with the official Guatemalan legal system.
Part II of the interview is available HERE.
Interviewer: James Tager, J.D. ‘13
In Guatemala, there are two functioning legal systems currently in place. There is an official legal system operated by the Guatemalan government, and there is an indigenous legal system operated by Mayan judicial practitioners. How do these two systems interact? How are they supposed to interact?
This is one of the biggest challenges for the Guatemalan justice system, and it directly relates back the legacy of the conflict. The historical lack of judicial oversight or even of a functioning state justice system in the Mayan highlands helped produce support for the insurgencies of the conflict. Since then, the Government of Guatemala has ratified International Labour Organization Convention 169, which recognizes Mayan indigenous justice practices. Traditional Mayan conceptions of justice can be employed, hopefully increasing local ownership of and satisfaction with justice processes.
I think most Mayan communities do not feel vested in the historic official Constitutional system, and there are good reasons for that. If your experience of the Constitutional system has been that it is largely absent, as has been the case in the highlands of Guatemala, it’s hard to believe in that system. And if your only real experience of the system is that it has been used to justify removal of ownership over your lands, then that makes you even less amenable.
Mayans do have traditional justice conceptions and practices that are focused on restorative justice that is community based. Our own American legal system could benefit from adopting some of these and has worked to incorporate concepts like community service. The indigenous system, however, is not without problems, including abuse of authority, gender equity, arbitrary detentions and violence by local communities frustrated with impunity. Mayan communities were targeted for violence and Mayan justice practitioners were largely eliminated during the many assassinations of the conflict, producing a void or a break in the historical continuity of Mayan justice practices. That means that the Mayan legal system is, in a sense, being reconstructed. Some of the more violent practices learned in the conflict, like lynchings, are even being portrayed as Mayan justice.
During the armed conflict, both the army and the guerrillas would arrive in Mayan villages, convene the inhabitants and allege ‘you’ve been collaborating with the other side, hand over your co-collaborators’ and villagers would hand over people because they knew that everyone would be worse off if they didn’t cooperate. The ‘collaborators’ were usually summarily tried and executed in front of the village as a demonstration killing. I think the current epidemic of lynchings is very much a legacy of that type of terror tactic for social control. They are not really Mayan justice practices. But because the idea of a “Mayan justice system” has become common and these lynchings tend to happen, though not exclusively, in Mayan communities, then they get depicted as a Mayan justice practice. Curiously, this representation of savagery goes back to the historical fears of Mayan majority domination mentioned earlier.
So how do you see the interaction between these two judicial systems evolving?
The official Constitutional system unfortunately continues to be weak and will require years of intensive reform efforts. The news is not all bad however. Guatemalan prosecutors, now led for the first time by a female human and women’s rights advocate, Claudia Paz y Paz, have begun to make progress on the impunity for historic war crimes that underpins much of Guatemala’s current justice challenges. In June a former general, Hector Lopez Fuentes, was detained as the architect of crimes of genocide and forced disappearances in the early 1980s and, in August, members of the Guatemalan Army brigade most associated with the scorched earth policy that left hundreds of thousands of dead and more than 600 villages razed were sentenced by a Guatemalan court in one of the first such convictions.
Continued oversight of local Mayan practices will also be necessary. Our small project in Quiché, which is funded by the U.S. State Department, has convened almost 50 Mayan leaders to review justice practices and address some of these challenges. But it’s worth pointing out that we’re comparing apples and oranges. There are two very disparate functioning systems which are being simultaneously practiced in Guatemala. But analysts have tended to compare Mayan practice with Western standards of rights. Instead, it’s important to compare practice with practice – and both systems of practice exhibit deficiencies that require a great deal of work. Our project in Quiché follows a legal empowerment concept: in polarized societies where justice agencies have not really functioned, legal reforms and trainings are not sufficient. The justice system literally has to be rebuilt with ownership from the ground up. Building relationships between Mayan communities and Constitutional justice agencies, and exploring the possibility of Mayan justice practice as a way to lessen the burden on the official agencies, is a truly historic opportunity in Quiché that would have been inconceivable fifteen years ago.
The cultural relativist/universalist controversy is one of the great debates in international law and in human rights work. But your example of Mayan lynchings brings up the point that sometimes a ‘cultural’ practice may not be cultural at all.
I think a good question to ask is “who is that person telling you about cultural relativism and do they really represent the culture?” I was in Bosnia for three-and-a-half years, and the leaders of ethno-religious strife in Bosnia weren’t necessarily the leaders of the religious community they claimed to represent. My thesis on that is, and which is documented in the book called “Yugoslavia: The Death of a Nation” by Laura Silber, the conflict wasn’t really a clash of civilization between Muslims, Orthodox, and Catholics. It was very much a result of Communist Party officials realizing what was happening to their colleagues in neighboring governments where they were being voted out by the democratic transitions across Eastern Europe, knowing that their days were numbered, and going for the lowest common denominator to stay in power. That lowest common denominator was the identity politics of ethnicity.
There were historic ethno-religious grievances and a record of conflict, no doubt about it. But the political elites revived and intensified it for their own interest. I tend to follow Amartya Sen’s line, presented in “Identity in Violence”, that so much of what we may be told is a ‘clash of civilizations’ and other types of cultural strife is actually the result of shabby politics. By ‘shabby politics’ I mean the manipulation of identity politics that produces human rights violations. If we return to the previous example, I think lynchings are an example of these pseudo-cultural legacies. People were not lynched in Mayan communities before the civil war. People learned this theater of summary executions and death, and now they have replicated it, and it is misrepresented as cultural.
But even with all that, I do think there is a legitimate issue within the cultural relativist/universalist debate in its application to Mayans and the justice system. I referred earlier to gender equity issues. Another issue is the ritual whipping known as xicay. Guatemalan judges in Quiché rightly protest that they simply cannot allow whippings of people in public. As for Mayan practitioners, there’s a big debate about this. Some Mayans say, “yes, the whippings were done historically, but they were symbolic. You would be symbolically punished in front of the community and you would then be returned to the community. These were not intended as brutalizing punishments.” There are other Mayan practitioners who say, “no, you really have to whip them.”
These are problems that have to be worked out, and the absence of the conflict allows for that to be possible. Over the past fifteen years of my involvement in these issues, I have witnessed Mayan communities evolve to a point where there is much more reflection about what constitutes authentic Mayan justice practice. Many Mayans now will say that they don’t agree with the practice of whipping.
This returns us to the continuing and real need to think about local practices versus international standards. One of the strengths of Mayan justice practice is that it is very local. Trying to create and enforce universal standards may in fact be detrimental to that practice but there are certain issues that have to be worked out in terms of compatibility to make sure that the two Guatemalan judicial systems, the Constitutional system and the Mayan system, can at least function with a certain level of confidence that they’re not grossly violating the standards of the other.
In your writings and research, you mention the pitfalls of other-imposed, top-down plans to reform the justice system, and how these plans can be sub-optimally implemented or even unproductive when they come up against the realities of local conditions. How do you avoid these pitfalls? What has your experience in Guatemala taught you regarding this?
I always say that we have a lot to learn in the peace and justice field and that we learn it from the people in conflict. One of my experiences helped me understand this in the context of our work in Guatemala: from 2001-2004, I managed a U.S. Agency for International Development-funded human rights project where we used a grassroots strategy for targeted projects with small civil society groups in the five Guatemala highland departments. These organizations were fragile groups that didn’t have a tremendous amount of capacity and we didn’t want to overwhelm them with funding—that’s perhaps the worst thing you can do to a lot of mission-driven local organizations—so instead conducted human rights advocacy, training, and education at the local level, along with enhancing their connection with justice agencies. And what we discovered over time was, just by facilitating that relationship we were catalyzing justice outcomes.
How we learned this was through the monitoring component of our project which trained Mayans in local languages to go out to the local villages, off the grid, to see how our training was being disseminated in local communities. This was an important step because most projects are designed with a boilerplate – there’s almost a faddish component to it. One year it’s women and development, the next year it switches to another theme. Our project was intended to get past that and to ensure that we were plugged into local conceptions and changes on the ground. What we saw over a two-year period was that by building that relationship between justice interlocutors and civil-society groups our project had triggered a process where cases were being solved.
Guatemala is a country where you have only a handful of people in jail for the deaths of 200,000 people (despite the recent progress I mentioned earlier). Earlier in the decade there was virtually no judicial process on most of the human rights violations, and suddenly our project monitoring was reporting that dozens, and eventually hundreds, of local cases and conflicts were being solved.
My first reaction as a project manager was to suspect that this wasn’t true. We consulted our monitors and examined the results more closely, which held up to scrutiny. It was only later that I learned more about the academic literature on the legal empowerment alternative.
[For more on the legal empowerment alternative, Line recommends the work of Stephen Golub, of the Boalt School of Law at University of California at Berkeley.]
This has important implications for legal reform efforts, which usually have focused on reforming codes and training attorneys. In Guatemala, U.S. assistance has invested $30-40 million over the past decades on justice reform projects that focus on restructuring civil and criminal procedure, instituting oral adversarial systems, and training. This is not necessarily bad, but it is insufficient in reforming a largely unaccountable justice system that has historically operated in a limited fashion and distant from the social realities of Guatemala. To do that, I think you have to start from the grassroots and have civil society placed in a position where it can advocate for and oversee transformation of the system.
Has there been any indication that the Guatemalan justice system can incorporate such social capital into their system?
Recently the justice system of Guatemala has established alternative conflict resolution centers which have become a great vehicle for managing many of the cases that can be resolved through local mediation. Because the courts are slow and generally inefficient, the opportunity to solve problems under legal auspices that ensure a certain level of standards and guarantees of accountability and justice is more attractive than having your case sit in court for years and never get finalized. So that has been an indication of progress from the institutional side, and an encouraging sign for judicial issues in the country more generally. Much depends on whether people like Attorney General Claudia Paz are able to continue working to make the justice system operative for the first time in Guatemalan history. This is an important time to follow recent events in Guatemala: The change in presidential administrations following the 6 November 2011 elections may lead to the Attorney General’s removal, though the US Ambassador, to his credit, has publicly stated his support for her continued efforts and Secretary of State Hillary Clinton will award her the International Crisis Group’s In Pursuit of Peace Award on 16 December 2011. It has yet to be seen how the recent presidential elections will affect the justice system within the country.
This concludes HHRJ’s interview with Milburn Line. For more information about the work of the Joan B. Kroc Institute for Peace and Justice, visit their website. The complete interview series is available HERE.