25
70.
Concerning the nature of the civil patrols, the Commission pointed out
that, under the law by which they were regulated, they were hierarchically
subordinate to the Guatemalan Ministry of National Defense, and that such
subordination to the armed forces was not merely statutory, but de facto as well.
The civil patrols "received the training needed to perform their duties from the
Army... the weapons they [bore were] the property of the Army... and weapons
and munitions alike [were] controlled by the Army."
71.
The Commission adduced "the close connection" between the civil patrols
and the State, highlighting a series of shared characteristics. It pointed out, first
of all, that the State had indeed created the patrols as part of its counterinsurgency strategy, a fact corroborated by the studies prepared by the
Commission, in particular its Annual Report for 1984-1985, and that they
involved the rural and indigenous population in the armed conflict. Moreover, it
indicated that they were supervised, trained and armed by the State and that
Decree-Law 19-86 of January 10, 1986, had legally recognized the civil patrols
after years of operation and described them as "auxiliary forces coordinated by
the Ministry of Defense."
72.
In this case, the Commission maintained that the El Llano Civil Patrol took
orders directly from Guatemalan Army personnel, since the patrolmen sought and
received instructions from the military personnel of the Las Majadas garrison
when they detained Nicholas Blake (supra 52(a)).
73.
The State rejected the argument that the members of the civil patrols
were agents of the State and that it was responsible on the basis of that premise.
It further stated that the civil patrols were voluntary community organizations
that had sprung up in areas of conflict and that they were composed of
inhabitants of those areas who wished to defend their lives, those of their families
and their belongings from subversive elements. It pointed out that it was natural
for those patrols to have close links with the Army in connection with the antisubversion struggle, but that this did not imply that "its members belong[ed], or
[performed] the same functions as the Armed Forces and that they [were] agents
of the Guatemalan State."
74.
The State declared that it did not grant members of the patrols any
remuneration or social security benefits as it did to regular troops. It further
stated that its members were not subject to military discipline and performed
their patrol duties in their free time, when not engaged in their own work.
*
*
*
75.
The Court considers that, contrary to Guatemala's claims, the civil patrols
in fact acted as agents of the State during the period in which the acts pertaining
to the instant case occurred (supra 52. (p)). That view was confirmed by a mass
of information and documentation available from various bodies, including
international human rights oversight organs (Decree-Law 19-86 of January 10,
1986; Decree 143-96 of the Congress of the Republic of Guatemala of November
28, 1996; Peace Agreements, 1996-1998; Agreement on the Strengthening of
the Civil Authority and Function of the Army in a Democratic Society, of
September 19, 1996; Persecution by Proxy: The Civil Patrols in Guatemala, the
Robert F. Kennedy Memorial Center for Human Rights, 1993; Institutional
Violence: The Civil Self-Defense Patrols in Guatemala, the Robert F. Kennedy
Memorial Center for Human Rights, 1994; Civil Patrols in Guatemala, an Americas
Watch Report, 1988; Closing the Space: Country Reports on Human Rights