The International Human Rights Framework on the Right of Peaceful Assembly
Guatemala is a State Party to the 1966 International Covenant on Civil and Political Rights (ICCPR). Article 21 of the ICCPR governs the right of peaceful assembly, providing that:
The right of peaceful assembly shall be recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and which are necessary in a democratic society in the interests of national security or public safety, public order (ordre public), the protection of public health or morals or the protection of the rights and freedoms of others.
Guatemala is also a State Party to the First Optional Protocol to the ICCPR, which allows individuals to petition the Human Rights Committee if they believe the State has violated their human rights as protected under the Covenant.
On 9 March 2020, Guatemala became the first State to seek formally to derogate from Article 21 of the ICCPR on the basis of the COVID-19 pandemic. Guatemala’s derogation lasts for 30 days.Guatemala subsequently informed the UN Secretary-General that it was restricting the right of assembly from 22 to 29 March 2020 and that the restrictions might be extended. Text available at: bit.ly/2UBBV6n.
Guatemala is a state party to the 1969 Inter-American Convention on Human Rights (ACHR). Article 15 governs the right of assembly:
The right of peaceful assembly, without arms, is recognized. No restrictions may be placed on the exercise of this right other than those imposed in conformity with the law and necessary in a democratic society in the interest of national security, public safety or public order, or to protect public health or morals or the rights or freedom of others.
Guatemala has accepted the competence of the Inter-American Court of Human Rights to hear complaints by individuals under the jurisdiction of the State that their rights under the 1969 Convention have been violated.
On 23 March 2020, Guatemala informed the Organization of American States (OAS) that it had declared a state of national health disaster across its territory. In an annexed letter to the Secretary-General of the OAS, it announced limitations on the exercise of the right of peaceful assembly although it did not declare formally that it was derogating from Article 15 ACHR. In a letter of 25 March to the Secretary-General of the OAS, Guatemala observed that the state of emergency had been prolonged for a further 30 days. The derogation from the right of assembly has continued to be derogated from during gthe COVID-19 pandemic.
The Domestic Legal Framework on the Right of Peaceful Assembly
Article 33 of the 1985 Constitution of Guatemala (as amended) provides that:
The right of peaceful assembly and without weapons is recognized.
The rights of assembly and of public demonstration may not be restricted, diminished, or restrained; and the law shall regulate them with the sole purpose of guaranteeing the public order.
The religious manifestations outside of temples are permitted and are regulated by the law.
For the exercise of these rights a prior notification by the organizers before the competent authority will suffice.
In March and April 2020, the right of assembly was temporarily suspended by decree as a result of the COVID-19 pandemic.
Assemblies can be held in any public or private space. In 2014, the Law for the Circulation by Roads Free of any type of Obstacles (Ley para la Circulación por Carreteras Libre de cualquier Tipo de Obstáculos) was enacted. The 2014 Law authorises the General Directorate of Roads to request the National Police’s help to remove any obstacle from the roads.Art. 8, 2014 Law for the Circulation by Roads Free of any type of Obstacles.The Law also establishes fines of from 1,000 to 5,000 quetzales for any person who blocks the roads.Art. 9, 2014 Law for the Circulation by Roads Free of any type of Obstacles.
In November 2017, amid protests demanding the resignation of President Jimmy Morales, the Guatemalan Congress began drafting a bill to outlaw roadblocks as a form of “terrorism”. Based on media reports, the bill defines terrorism as “any type of typical conduct that … affects public buildings, roadways, communication outlets, or any type of transportation outlet, energy or transmission towers…or any other public service.” The bill had not yet been discussed in the Congress as of writing.
The Legal Framework on Use of Force During Assemblies
The Use of Force
International Legal Rules
Under international law, the duty on the State and its law enforcement agencies is to facilitate the enjoyment of the right of peaceful assembly. According to the 1990 United Nations Basic Principles on the Use of Force and Firearms by Law Enforcement Officials:
In the dispersal of assemblies that are unlawful but non-violent, law enforcement officials shall avoid the use of force or, where that is not practicable, shall restrict such force to the minimum extent necessary.
All force used by police and other law enforcement agencies must be necessary for a legitimate law enforcement purpose and proportionate to that purpose.
Article 8 of the 1965 Public Order Act allows the authorities to use force to disperse an unauthorised assembly.
The Use of Firearms
International Legal Rules
According to the 1990 United Nations Basic Principles, in the dispersal of violent assemblies, a law enforcement official may only use a firearm against a specific individual where this is necessary to confront an imminent threat of death or serious injury or a grave and proximate threat to life.
According to National Civilian Police Disciplinary Regulations, negligence or lack of care in the use of firearms is a serious disciplinary offence. There is no specific regulation on use of firearms during assemblies.
State Compliance with its Legal Obligations
Views and Concluding Observations of United Nations Treaty Bodies
In its 2018 Concluding Observations on Guatemala, the Human Rights Committee expressed its concern
about draft legislation relating to terrorist acts, public order and non-governmental organizations that would restrict freedom of expression, assembly and association by defining criminal conduct in vague terms, among other reasons....
The 2017 Universal Periodic Review of Guatemala under the Human Rights Council did not address the right of peaceful assembly in detail.
In March 2018, the Inter-American Commission on Human Rights (IACHR) released a report on the Situation of Human Rights in Guatemala. It stated that it had
received information about a systematic and standing practice of Guatemalan authorities to bring community leaders before the Guatemalan justice system for allegedly committing the crime of “usurpation” or “aggravated usurpation” of protected areas, as well as “terrorism,” “illegal assembly or demonstrations”.
In September 2017, the Constitutional Court (Corte de Constitucionalidad) accepted two petitions for constitutional remedies (amparos) filed by the Office of the Human Rights Ombudsman (Procuraduría de los Derechos Humanos). In its decision, the Constitutional Court held that the authorities “must allow the exercise of the rights to free movement, free expression of thought, assembly, and protest”, and that the President must instruct the Ministry of the Interior and the National Civil Police to comply with the decision and allow demonstrators to exercise their rights peacefully. The Guatemalan government released a statement on Twitter indicating that it would comply with the decision.
Views of Civil Society
Freedom House has reported that the constitution guarantees freedom of assembly, but this right is not always protected.
Police frequently threaten force, and at times use violence against protesters. Protests related to environmental or Indigenous rights issues have been met with harsh resistance from the police and armed groups.
In March 2020, the government declared a state of emergency due to the outbreak of COVID-19 and instituted mandatory curfews and restrictions on gatherings and activities. By September, the police had detained more than 40,000 people for violating the curfew restrictions.
In November, massive protests erupted following the congressional approval of the 2021 budget, which included sharp cuts to key services while allocating money to agencies plagued by corruption allegations. While most protesters—many of whom demanded President Giammattei’s resignation—were peaceful, sporadic violence occurred, including the setting of a fire that damaged Congress. Journalists and the PDH reported excessive use of force by the security forces against demonstrators; at least 22 people were injured, two of them with severe eye injuries. At least 35 protesters were detained, though most charges were later dismissed.