Untitled Document

Petition Submitted by
the Centre on Housing Rights and Evictions (COHRE) on behalf of the Survivors of the
Río Negro community and similarly situated communities in Guatemala (Petitioners)

Report No. _________________
Case __________

Guatemala: The Chixoy Dam Case

I. INTRODUCTION

1. The Centre on Housing Rights and Evictions (COHRE), an international human rights non-governmental organization legally recognized in the United States of America and Brazil with consultative status with the Organization of American States, respectfully submits this petition (Petition) against the Government of Guatemala, the Inter-American Development Bank (IDB) and its Member States which are also members of the Organization of American States, and the International Bank for Reconstruction and Development (World Bank) and its Member States which are also members of the Organization of American States, and the Government of the United States for both its direct support of the Government of Guatemala and its role as the principal decision-maker on both the World Bank and the IDB with respect to the Chixoy Dam project.

2. This Petition addresses issues related to violations of the human rights of the community of Río Negro, Baja Verapaz, Guatemala from the 1970s to the present. These violations occurred in the context of the forced eviction of the village of Río Negro in the context of the planning and construction of the Pueblo Viejo-Quixal Hydroelectric Project (Chixoy Dam).

3. With respect to the Government of Guatemala, this Petition asserts violations of, inter alia, the right to be free from discrimination (Article 1), the right to life (Article 4), the right to humane treatment (Article 5), the right to personal liberty (Article 7), the right to a fair trial (Article 8), the right to privacy including protection from arbitrary or abusive interference with his or her home and the right to protection from such interference (Article 11), the right to property (Article 21), the right to equal protection (Article 24), the right to judicial protection (Article 25) and the economic, social and cultural rights implied by the standards in the Charter of the Organization of American States (OAS Charter), including the right to adequate housing, including the prohibition on forced eviction (Article 26 as read in concert with, inter alia, OAS Charter Article 34(k)).

4. This Petition also asserts violations by the Directors on the Boards of Executive Directors of the World Bank and the Inter-American Development Bank (IDB) with legal obligations under the American Convention on Human Rights or the American Declaration on the Rights and Duties of Man or both, especially those Directors enjoying a disproportionate amount of voting power (over five per cent) and in particular the Government of the United States of America which held a key role in the decision-making bodies of both the World Bank and the IDB at the time of the Chixoy Dam project.

5. In this regard, with respect to Directors that are also State Parties to the American Convention on Human Rights, this Petition asserts violations of, inter alia, the right to be free from discrimination (Article 1), the right to life (Article 4), the right to humane treatment (Article 5), the right to personal liberty (Article 7), the right to a fair trial (Article 8), the right to privacy including protection from arbitrary or abusive interference with his or her home and the right to protection from such interference (Article 11), the right to property (Article 21), the right to equal protection (Article 24), the right to judicial protection (Article 25) and the economic, social and cultural rights implied by the standards in the OAS Charter, including the right to adequate housing, including the prohibition on forced eviction (Article 26 as read in concert with, inter alia, OAS Charter Article 34(k)).

6. In this regard, with respect to Directors that are not State Parties to the American Convention on Human Rights, this Petition asserts violations of the American Declaration on the Rights and Duties of Man, and in particular the right to life (Article I), the right to equality before the law (Article II), the right to protection of the law against abusive attacks upon his or her private and family life (Article V), the right to protection for ones family (Article VI), the right to special protection for women during pregnancy and the nursing period and of all children (Article VII), the right to inviolability of his or her home (Article IX), the right to preservation of his or her health through sanitary and social measures relating to food, clothing, housing and medical care (Article XI), the right to resort to the courts to ensure respect for his or her legal rights (Article XVIII), the right to property (Article XXIII) and the right to submit respectful petitions to any competent authority (Article XXIV).

II. ADMISSIBILITY

7. This case is admissible before the Inter-American Commission on Human Rights as (a) it is not pending before any other international inter-government proceeding; (b) domestic remedies do not afford due process, access to domestic remedies has been hindered, and there has been unwarranted delay with respect to domestic remedies; and (c) the Petition has been filed within a reasonable time period given the conditions in Guatemala and the on-going nature of the violations.

8. Article 46 of the American Convention on Human Rights and Article 33 of the Rules of Procedure of the Inter-American Commission on Human Rights (Inter-American Commission) state that the Inter-American Commission shall not consider a petition if its subject matter: (a) is pending settlement pursuant to another procedure before an international government organization of which Guatemala is a member; or (b) essentially duplicates a petition pending or already examined and settled by the Commission or by another international governmental organization of which Guatemala is a member.

9. This Petition has been submitted solely to the Inter-American Commission. The issues raised in this Petition are not pending before nor have they already been examined by the Inter-American Commission or any other international inter-governmental organization. The work of the Commission for Historical Clarification does not implicate the admissibility requirements of Article 33 of the Rules of Procedure of the Inter-American Commission.

10. Article 46 of the American Convention on Human Rights and Article 31 of the Rules of Procedure of the Inter-American Commission on Human Rights generally require that remedies of the domestic legal system be exhausted. Article 31, however, provides three exceptions to this general rule. The general rule of exhaustion of domestic remedies shall not apply when: (a) the domestic legislation of Guatemala does not afford due process of law for protection of the right or rights that have been violated; (b) the petitioner has been denied access to the remedies under domestic law or has been prevented from exhausting them; and (c) there has been unwarranted delay in rendering a final judgment under domestic remedies.

11. The Plan de Sánchez Massacre case dealt with very similar admissibility issues and provides authoritative guidance with respect to the present Petition. Indeed, the massacres of the Plan de Sánchez and Río Negro communities occurred in the same geographical region, near the town of Rabinal in Department of Baja Verapaz, and during the same period of time, in 1982.

12. The Petitioners have been denied access to the remedies under domestic law and have been prevented from exhausting them. Indeed, when members of the Río Negro community have attempted to assert themselves and to advocate for justice, they have been met with death threats and other means by which the Government of Guatemala seeks to silence them. These means have created a climate of fear that has resulted in the Río Negro community being unable to seek domestic remedies.

13. As recently as 2003, members of the Río Negro community have had to temporarily flee Guatemala in fear for their lives. Additionally, after bringing a case against three low-level Civil Patrollers who participated in the massacres, a Río Negro survivor testified:

It has been extremely difficult because we all live side by side, victims and perpetrators, and everyone knows who the witnesses are. We have received many threats throughout, some direct, some anonymous; some threatened to kill us once Ríos Montt was back in power. When we arrived at the courtroom for the trial, the patrollers who were not being tried threatened us.

14. In the only completed case in which the domestic courts have examined some of the violence that occurred in the area in the early 1980s, the case have focused solely on low-level actors rather than the intellectual authors and financiers of those human rights violations. Furthermore, one other case involving slightly more senior perpetrators is still open with no resolution forthcoming. Thus, these rare cases are not only ineffective at providing the Río Negro community with a just, fair and comprehensive remedy for the human rights violations it has suffered, but continue to be farcical on account of undue delay.

15. Finally, the World Bank and the IDB, and thereby their respective Member States, require States to enact legislation granting them immunity from domestic prosecution.

16. Article 46 of the American Convention on Human Rights and Article 32 of the Rules of Procedure of the Inter-American Commission on Human Rights require, when an exception or exceptions to the general rule of exhaustion of domestic remedies applies, that the petition be submitted to the Inter-American Commission on Human Rights in a reasonable period of time, as determined by the Commission.

17. Since their brutal forced eviction, the survivors of the Río Negro community have been living in extreme poverty with little access to advocates or counsel willing or able to assist them with bringing claims before the Inter-American Commission on Human Rights.

18. It wasn't until 2003 that the Centre on Housing Rights and Evictions, at the request of Rights Action, another non-governmental organization working in support of the Río Negro community, was able to begin its investigation into the facts of this Petition (see Addendum 2). With those facts now verified by COHRE and Rights Action, the community of Río Negro is finally able to safely petition the Inter-American Commission.

19. Based on the forgoing circumstances, and in particular the direct and intentional action of the Government of Guatemala to stifle the community's search for justice at the domestic level, the length of time that has elapsed since the forced eviction of the Río Negro community to the time of the submission of this Petition is reasonable.

20. Additionally, many of the human rights violations that began just prior to and during the forced eviction are ongoing to this day, including violations of Article 21 (right to property); Article 25 (right to judicial protection); and Article 26 (right to adequate housing) of the American Convention on Human Rights and Article XI (the right to preservation of his or her health through sanitary and social measures relating to food, clothing, housing and medical care), Article XVIII (the right to resort to the courts to ensure respect for his or her legal rights), Article XXIII (the right to property) and Article XXIV (the right to submit respectful petitions to any competent authority) of the American Declaration on the Rights and Duties of Man.

21. With respect to the violation of the right to adequate housing as guaranteed in Article 26 of the American Convention, please refer to Addendum 1 which is fully incorporated into this Petition by reference. Also note that the current housing conditions of the Río Negro community are a direct result of their forced eviction and are in and of themselves in violation of the right to adequate housing as elaborated upon in General Comment No. 4 of the Committee on Economic, Social and Cultural Rights (see Addendum 3).

III. FACTS OF THE CHIXOY DAM CASE

22. The Chixoy case highlights the complicity of international financial institutions (IFIs), including the World Bank and the IDB, in the brutal removal of indigenous communities from their lands in Guatemala. While the Government of Guatemala has, to some small degree, been repudiated by the international community for the mass killings, disappearance, torture and mass displacement and injury which occurred at the hands of the State during the civil war (and which indeed continue to occur in Guatemala) few have challenged the role of international actors in perpetuating the bloodshed, and to date victims have not been able to hold such actors accountable.
23. The facts of the forced eviction and displacement at Río Negro, including the massacres by which the Government of Guatemala implemented its brutal policy of displacement from the Chixoy dam reservoir basin, have been well-documented by various human rights organizations both within and outside Guatemala.
24. The planning of the Chixoy Dam goes back to the early 1970s, long before the village of Río Negro was aware of their pending displacement. The Government of Guatemala began construction of the Chixoy Hydroelectric Dam in 1975, in what it argued was effort to bring cheap and available electricity to the county. Ironically, the Government also claimed that an objective of the resettlement component of the project was to be "an improvement of the living conditions of the population in the serviced area of the project." The Chixoy Dam was raised along a stretch of land blocking the natural path of the Río Negro river in Baja Verapaz, in central Guatemala. The project was financed in part by the World Bank and the Inter-American Development Bank (IDB), which provided initial loans of US$72 million and US$105 million, respectively. Indeed, the project would not have been undertaken but for the involvement of the World Bank and the IDB. The then State-owned National Institute of Electrification or INDE (Instituto Nacional de Electrificación) was responsible for the administration of the funds and the coordination of the project.
25. The Government of the United States, as the principal decision-maker in the two Banks, was instrumental in securing funding of the Chixoy Dam project. Indeed, evidence suggests that the Chixoy Dam funding was one means by which the Government of the United States circumvented its public denial of funds to the Government of Guatemala from 1977 to 1981.
26. From the beginning of the project, INDE failed to consult with the communities that resided along the Río Negro, despite the fact that the construction of the dam would flood 31 miles of the river valley, leaving many of their communities and homes under water, and that such consultation was required by the right to adequate housing as enshrined in Article 11(1) of the International Covenant on Economic, Social and Cultural Rights and Article 26 of the American Convention on Human Rights as elaborated upon by General Comment No. 7. It was only in 1977, almost two years after project construction began, that INDE officials flew by helicopter into the small village, also named Río Negro, to inform residents that they would need to abandon their homes and lands because they were soon to be flooded. INDE promised that they would be given new homes and lands in compensation for their loss. At first, the villagers, already under duress due to repeated threats from military units, reluctantly considered to leave behind their homes and lands at Río Negro. INDE's promises soon proved to be deceptive, however, as villagers learned shortly thereafter that the resettlement site which was to be provided them was in fact grossly inadequate. At the settlement site, conditions were far worse than their existing conditions at Río Negro, with cramped, poorly constructed houses and infertile land. Today, the resettlement site continues to be nothing more than an urban slum, known as Pacux, located behind a military base on the edge of the town of Rabinal. Indeed, the Commission for Historical Clarification found that the "living conditions in Pacux were precarious and that the land was not adequate for their subsistence agriculture."
27. INDE increasingly became threatening, at least once stating: "If you abandon your land peacefully we will be happy. If you do not, the government can use all its power to remove you from your land using various methods." An INDE Legal Officer also stated that "to be able to get them out, it was necessary to use force and will, those that wanted to negotiate, were negotiated with and those that did not, force was used with them" and that "INDE still has not complied with the promise to give equal or better lands to the" Río Negro community and that the lands remain unregularized.
28. In order to displace the community, the Guatemalan authorities began to aggressively target the residents of Río Negro with violence, threats and intimidation. INDE officials requested the Río Negro community to turn over their land titles, promising to return them promptly. Months later, when the community requested that the titles be returned, INDE officials claimed they never received them. In March 1980, members of the Policia Militar Ambulante (Mobile Military Police), based at the dam site and contracted by the project, shot seven people in Río Negro. The villagers chased the police away and one officer, according to the people of Río Negro, drowned in the Río Negro. INDE and the Guatemalan army, however, accused the villagers of murdering the police officer and of being supporters of the country's guerrilla movement. Three months later, in July 1980, two representatives from the Río Negro community agreed to a request from INDE to come to the Chixoy Dam site to present their Libros de Actas, the community's only other documentation of the title to their land as well as the resettlement and cash payment agreements the community had signed with INDE. The mutilated bodies were found a week later, and the documents have never been recovered.
29. Throughout this period, the World Bank and IDB had direct supervisory roles over the Chixoy Dam project. These roles included on-going site visits in order to ensure that the project was implemented in a sound and lawful manner.
30. In February 1982, after reaching an impasse in negotiations with INDE, 73 women and men from Río Negro were ordered by the local military commander to report to Xococ, a village upstream from the reservoir zone. Only one woman out of the 73 villagers returned to Río Negro - the rest were tortured, including raped, and then murdered by Xococ's Civil Defence Patrol, or PAC, one of the notorious paramilitary units established by the Guatemalan military. On 13 March 1982, ten soldiers and 25 PAC patrollers arrived in Río Negro, rounded up the remaining women and children and marched them to a hill above the village where many were tortured, including rape. Seventy of the women and 107 children were then brutally murdered, with most of the women dying of strangulation or hacked to death with machetes. Many of the children had their heads smashed against rocks or trees until they too were dead. Only two women managed to escape, and became some of the few witnesses able to tell their story. Eighteen of the children survived because they were taken back to Xococ where they were enslaved by the very PAC patrollers who had killed their families. Those who have since escaped have also testified to the abuses of that day.
31. Two months later, on 14 May 1982, 82 more people from Río Negro were massacred at the nearby village of Los Encuentros. Fifteen of the victims were taken away by helicopter and never seen again. Witnesses testify that the perpetrators were government soldiers and members of the Xococ PAC who arrived in an a truck owned by Codifa, a company under contract of INDE for the Chixoy Dam project.
32. Finally, in September 1982, 35 orphaned children from Río Negro were among 92 people machine gunned and burned to death in another village near the Dam. In effect, the Guatemalan Army and PACs had forcibly evicted the people of Río Negro through a series of four massacres and other forms of violence and intimidation, trying to exterminate each and every member of the community. Indeed, the Commission on Historical Clarification concluded that the human rights violations against the Río Negro community were undertaken by "the Guatemalan Army with the Xococ PAC" and that the Río Negro "case demonstrate[s] the intention of the head of the Army to fully or partially destroy said community, independent of the motivations of the authors, which makes this an act of genocide."
33. Broken, terrorized and grieving, the survivors of the community fled their homes and went into hiding. The reservoir was filled soon after this final massacre. Over the next ten years, the survivors trickled their way to the grossly inadequate resettlement site of Pacux, a so-called "Model Village" situated behind a military base on the edge of the town of Rabinal.
34. Once such human rights violations began to occur, INDE, along with the World Bank and IDB in their respective supervisory roles, were effectively put on notice and thereby ought to have known that paramilitary and government agents were actively carrying out atrocities in order to forcibly evict civilians in order to clear the way for construction of the Chixoy Dam, often with funding and equipment from the project itself.
35. Throughout this period, the Inter-American Development Bank (IDB) loaned Guatemala US$105 million to build the Chixoy Dam in 1975 and a further US$70 million in 1981. The World Bank loaned US$72 million for the Chixoy Dam in 1978 and another US$45 million in 1985, with the second installment paid after the massacres had occurred. At the very least, the gross negligence and reckless disregard shown by the two banks in the Chixoy case highlights the role of international financial institutions in fostering a climate of impunity for human rights crimes committed in Guatemala and underscores how powerful international actors ignored, and profited from, that country's brutal history of repression. Indeed, all parties behind the project were unjustly enriched due to these atrocities and their actions or inaction exhibited a reckless disregard for the human rights of the Chixoy community.

36. Indeed, it appears that INDE encouraged the violence so that their officials could pocket compensation payments due to the villagers. The two Banks which financed and directly supervised the project had an obligation to show due diligence with regard to the implementation of the project, especially given Guatemala's well-known human rights record throughout the 1970s and 1980s.

37. Finally, during the summer months of 2004, the now privatized INDE intentionally cut off electricity and, thereby potable water, to the community of Pacux. As of 18 August 2004, the Pacux community has been without electricity and potable water for seven to eight weeks. This cutoff of essential infrastructure is due in part to the fact that since INDE was privatized the resettlement office has closed and now INDE refuses to honor any entitlement agreed upon between INDE and the affected communities unless the communities have written proof that such an entitlement exists. As massacres occurred before compensation terms were finalized and community records of compensation promises disappeared with their leaders, residents of Pacux lack the documents necessary to satisfy INDE. Furthermore, the closure of the resettlement office has resulted in a lack of complaint mechanism for resettled communities, thereby leaving them with no local remedy.

IV. LEGAL LIABILITY OF THE GOVERNMENT OF GUATEMALA

A. Jurisdiction

The Inter-American Commission on Human Rights has jurisdiction over the Government of Guatemala with respect to the present Petition.

38. Guatemala ratified the American Convention on Human Rights on 25 May 1978, and thus became legally obligated "to respect the rights and freedoms recognized [in the American Convention] and to ensure to all persons subject to their jurisdiction the free and full exercise of those rights and freedoms, without any discrimination for reasons of race, color, sex, language, religion, political or other opinion, national or social origin, economic status, birth, or any other social condition."

39. In 1987, the Government of Guatemala accepted the jurisdiction of the Inter-American Court of Human Rights, but "with the reservation that cases in which the competence of the Court is recognized are exclusively those that shall have taken place after the date that this declaration is presented to the Secretary General of the Organization of American States." While this reservation may preclude review by the Inter-American Court of Human Rights of general human rights violations prior to 1987, with regard to ongoing violations associated with the present case, for example the on-going violation of the rights guaranteed by Articles 21, 25 and 26 of the American Convention on Human Rights, the Commission does have jurisdiction.

B. Legal Liability of the Government of Guatemala

The Government of Guatemala is legally liable for the human rights violations perpetrated against the Río Negro community in the context of the Chixoy Dam project.

40. INDE, as the government agency responsible for the administration of the Chixoy project was responsible for the project's implementation. As an agency of the Government of Guatemala, INDE also had a duty to uphold the human rights of the Río Negro residents, as well as of members of other communities affected by the building of the Chixoy Dam. By 1982, the Government of Guatemala was already a party to the American Convention on Human Rights, and thus legally bound to respect and to ensure, inter alia, the right to be free from discrimination (Article 1), the right to life (Article 4), right to humane treatment (Article 5), the right to personal liberty (Article 7), the right to a fair trial (Article 8), the right to privacy including protection from arbitrary or abusive interference with his or her home and the right to protection from such interference (Article 11), the right to property (Article 21), the right to equal protection (Article 24), the right to judicial protection (Article 25) and the economic, social and cultural rights implied by the standards in the OAS Charter, including the right to adequate housing, including the prohibition on forced eviction (Article 26 read in concert with, inter alia, OAS Charter Article 34(k)) (see Addendum 1).

41. In order to establish legal liability, the following four elements must be proven: (a) there was a duty to act, or refrain from acting, in a certain way on the part of an individual or agency; (b) that duty was breached by the duty-holder; (c) someone was injured in conjunction with that action or in-action; and (d) there was causation between the act or omission and the injury.

42. INDE, and by extension the Government of Guatemala, is legally liable for the Chixoy massacres, as they were directly responsible for the implementation of the dam project. Indeed, soldiers responsible for the massacres were in the employ of the project. INDE's management and administrative role, which it shared with the World Bank and the Inter-American Development Bank, implies a duty to ensure that the rights of those residents to be displaced by the Chixoy project were not violated. INDE, as a government agency, was in 1982 legally bound to respect and ensure all of the rights articulated in and protected by the American Convention on Human Rights. INDE breached this duty, as is evidenced in the mismanagement of the Chixoy project and the repeated abuse and murder or forced displacement of affected residents, and thus the Government of Guatemala violated its legal obligations to respect and to ensure the human rights enshrined in the American Convention on Human Rights.

43. At the time of the massacres, the Government of Guatemala was militarized. The General Manager of INDE was an Army General and INDE was wrought with corruption. INDE repeatedly sought to avoid spending on components of the project that would not result in enriching its management, including several attempts to have the relocation expenses paid by other government agencies including the Ministry for Agriculture even though parts of the World Bank and IDB loans were allocated to INDE specifically for relocation expenses. Furthermore, the World Bank and IDB failed to act in order to address this corruption and continued to ignore the violation of the human rights of those residing in the Chixoy reservoir basin.

44. The Government of Guatemala has argued that the atrocities committed against civilians during the country's most violent periods in the 1980s was at the hands of paramilitary organizations, such as the PAC in this case, which were not officially agents of the Government. This argument has, however, been discredited by the Inter-American Commission on Human Rights, the Guatemalan Commission for Historical Clarification and non-governments organizations.

45. Human rights organizations have uncovered strong ties, for instance, between the highest of governmental authorities and these clandestine groups. Amnesty International has noted "During the conflict, which shook Guatemala over a period of more than thirty years, the [civil defense] patrols served as civilian adjuncts to the Guatemalan army. They were formed at military behest and operated under military orders." Indeed, the PACs that participated in the Río Negro massacres were commanded and accompanied by Guatemalan soldiers.

46. Furthermore, the cooperation between the Guatemalan military and the PACs was known as early as 1981, when the Inter-American Commission on Human Rights itself recognized the complicit relationship between the Government and paramilitary groups which operated outside the law:

The Commission has been receiving on a regular and steady basis over the last four years several accusations, testimonies, documents and reports which accuse the governmental authorities and security forces of innumerable acts which involve extremely serious and systematic violations of the right to life. … Such accusations, documents, testimonies and reports have led the Commission to the unmistakable conclusion that in Guatemala the almost daily extrajudicial executions of thousands of persons or the extrajudicial arrests which later result in missing persons are due to the action, in repeated instances, of the legally constituted security forces or to the paramilitary groups of civilians who act with the knowledge and generally with the close cooperation of the government authorities.

47. The Report of the Guatemalan Commission for Historical Clarification also reiterated these findings, concluding that:

Those acts which are directly attributable to the State include those perpetrated by its public servants and state agencies. Additionally, the State holds direct responsibility for the actions of civilians to whom it delegated, de jure or de facto, authority to act on its behalf, or with its consent, acquiescence or knowledge. This includes military commissioners who were by law, agents of military authority; Civil Patrol members, insofar as the military authorities organized, directed or ordered them or had knowledge of their actions … .

48. As early as 1980, members of the Río Negro community were being murdered by the security forces, including by Guatemalan soldiers and the Policia Militar Ambolante, both in the employ of the Chixoy Dam project. Eye witness accounts of the massacre which took place on 14 May 1982 in which 84 Río Negro residents were killed by the Xococ PAC and government soldiers at Los Encuentros, note that a short time before the massacre, the assassins stopped at the INDE office in Pueblo Viejo, after which they were driven in an INDE truck to Los Encuentros to commit the massacre. Recall also that INDE was at that time governed by an Guatemalan Army General and its policies were an integral part of the overall policy of the Government of Guatemala to militarise the economy. Once such human rights violations began to occur, INDE, along with the World Bank and IDB in their respective supervisory roles, were effectively put on notice that paramilitary and government agents were actively carrying out atrocities in order to clear the way for the Chixoy Dam.

49. No attempt was made by INDE to protect the residents from violence. INDE, the World Bank and IDB Project Officers, could not and should not have been unaware of the fact that Río Negro residents were being targeted with violence. At a time when the Government was committing atrocities in the country-side, this knowledge alone should have alarmed INDE, as the overseeing agency responsible for the implementation of the Chixoy dam project, and compelled it to take immediate action. INDE, however, took no action to protect the residents. Neither did INDE make any attempt to communicate that military officials, soldiers and PAC members would be held responsible for the repressive tactics. Such inaction in the face of known human rights violations implies that INDE itself may well have orchestrated, or at least knowingly condoned, the massacres and other human rights violations that occurred during the planning and construction of the Chixoy Dam.

50. The massacres that took place in 1982 were a culmination of years of violent repression. This repression was, at least in part, instigated in an effort to make community residents leave the soon-to-be flooded site and accept a relocation package which would have greatly diminished their standard of living. As mentioned above, INDE had all the warning signs that the affected communities were being actively targeted with violence, and INDE was legally obligated as an organ of the Government of Guatemala to ensure the safety of residents and to manage the Chixoy project in such a way as to ensure the rights of community members. This duty was breached by INDE, and thus by the Government of Guatemala. INDE, and by extension the Government of Guatemala, was either a knowing accomplice in the massacres, or, in the best case scenario, acted with reckless disregard by turning ignoring the violence suffered by the community, effectively giving the message that Guatemalan security forces and PAC members could act with impunity.

51. The Government of Guatemala had a legal obligation in 1982, under the American Convention on Human Rights, to ensure and protect the rights of members of the Río Negro community, and other communities to be affected by the construction of the Chixoy dam. As INDE was an official government agency, this obligation also transferred to it. INDE breached this obligation, through active collusion, or at a minimum reckless disregard, as evidenced by the repeated violence perpetrated against the members of affected communities. This violence started as early as the mid-1970s, culminating in 1982 with the four Río Negro massacres. These abuses were well-known. The Inter-American Commission on Human Rights in 1981 documented the violence then occurring in and around Río Negro, noting that the violence occurred against the backdrop of the construction of the Chixoy dam.

Río Negro is a village in the municipality of Pueblo Viejo in the Department of Alta Verapáz. Construction of the Chixoy Hydroelectric Complex is under way in that municipality. This will serve as an energy source for the entire region, principally for exploitation of the northern transversal strip, which contains the most important copper and nickel deposits exploited, as well as the oil deposits thus far unexploited. According to information received by the IACHR, on March 4, 1980, several army contingents arrived in the village of Río Negro. They were carrying three inhabitants of the municipality whom they had captured on the road and whom they accused as being "subversives." Upon arriving at the village, the arrested persons began to shout so that the people in the town would know they were in the hands of the army. A crowd gathered around the vehicles carrying the troops. Some asked them to release the campesinos, who were known at that place, others asked them not to take them away, not to hit them and to think of their families. Upon seeing that the people were gathering, the soldiers machine gunned the crowd, which resulted in six dead, including two women, and 13 wounded.

52. The case of INDE fulfils the first two elements necessary to establish legal liability, namely that: (a) INDE as an official agency of the Government of Guatemala had a duty to act, or refrain from acting, in accordance with the provisions of the American Convention on Human Rights, and that (b) that duty was breached by the action or inaction of INDE and by extension by the Government of Guatemala.

53. The final two elements, that (c) someone was injured in conjunction with that action or in-action, and (d) there was causation between the act or omission and the injury, are easy to substantiate. Certainly, the injuries suffered by the Río Negro community were extensive and grave. Loss of life; physical, mental and sexual torture; forced eviction and displacement; loss of property and personal belongings; deteriorating living conditions for survivors; impunity and continued harassment all characterized the injuries suffered. Many of these violations are, in fact, on-going and continue to be borne by the survivors. The fact that these horrors occurred is indisputable. The fact that they occurred in conjunction with the construction of the Chixoy dam is also indisputable.

54. Finally, the element of causation demands that there be a direct causal relationship between the injury (in this case the violations suffered by the Río Negro community and other affected residents) and the breach of the duty-holder (in this case INDE's failure to manage the Chixoy project in compliance with the Government of Guatemala's obligations under the American Convention in Human Rights). In other words, but for INDE's action (or in-action) and the ongoing funding of the World Bank and the IDB, the Río Negro community would not have suffered as it did, when it did. INDE, and by extension the Government of Guatemala, was either a knowing accomplice in the massacres, (as evidenced by extensive human right research documenting the close relationship between the Government of Guatemala and paramilitary organizations such as the PACs), or, alternatively, INDE acted with reckless disregard by ignoring the violence perpetrated against the Río Negro community as early as 1980, effectively condoning actions of the Guatemalan military and PAC members. In either case, the Government of Guatemala breached its obligations under the American Convention on Human Rights to protect and ensure the rights of affected residents. It should also be pointed out that by ignoring the violence, INDE stood to directly benefit from the human rights violations suffered by the Río Negro community. The massacre, forced eviction and displacement of the Río Negro community meant that INDE did not have to relocate or provide just and fair compensation to the residents, and as such INDE, as well as the World Bank and the IDB, was unjustly enriched by these human rights violations.

55. The violations suffered by the Río Negro community were directly related to the raising of the Chixoy Dam. While other communities in Guatemala suffered violence that was not associated with the Chixoy project, in this case the timing and escalation of violence coupled with the explicit pressure and threats levied against the Río Negro community to leave their lands, strongly suggest that the Chixoy dam was the major rationale behind the repression experienced by this particular community.

56. In either case, the Government of Guatemala is legally liable for effectively causing the injuries suffered by the community, either through active collusion with the killers, or through failure to act, reckless mismanagement and implied complicity. Indeed, it is not necessary to prove that INDE (or the Government of Guatemala) was in fact the intellectual author behind the killings. Intent is not a necessary element to prove legal liability. Rather, INDE's failure to protect the Río Negro community, and thereby meet its obligation to ensure their human rights, from the violence with which it was targeted, especially when all the warning signs were there early on, is enough to establish legal liability in this case.

V. LEGAL LIABILITY OF THE INTER-AMERICAN DEVELOPMENT BANK

A. Jurisdiction

The Inter-American Commission on Human Rights has jurisdiction over the governments that are members of the Organization of American States and on the Board of Executive Directors of the Inter-American Development Bank, and in particular the Government of the United States of America.

57. The IDB is a multi-lateral lending agency, with voting power on the Bank's Boards of Governors and Executive Directors based on a country's subscription to the IDB's ordinary capital. Currently, the division of subscriptions is approximately as follows: Latin America and the Caribbean, 50 percent; United States, 30 percent; Japan, 5 percent; Canada, 4 percent; and other non-borrowing members, 11 percent.

58. The highest authority of the Bank is vested in the Board of Governors, composed of one Governor and an Alternate Governor appointed by each member country. Governors are usually Ministers of Finance, Presidents of Central Banks or other officials. The Board holds an annual meeting to review the Bank's operations and to make major policy decisions. The Board of Governors delegates many of its powers to the Board of Executive Directors. The IDB's 14-member Board of Executive Directors is responsible for conducting Bank operations and for approving projects proposed by the President of the Bank. The President of the IDB is elected by the Board of Governors to a five-year term and conducts the day-to-day business of the institution along with the Executive Vice-President.

59. The following governments were States Parties to the American Convention on Human Rights and enjoyed disproportionate voting power (over five per cent) on the Board of Executive Directors of the Inter-American Bank at the time of the events at issue in this Petition: Mexico (7.8%) and Venezuela (5.68%).

60. The following governments were not States Parties to the American Convention on Human Rights, but bound by the American Declaration on the Rights and Duties of Man, and enjoyed disproportionate voting power (over five per cent) on the Board of Executive Directors of the Inter-American Bank at the time of the events at issue in this Petition: United States of America (35%), Brazil (12.12%) and Argentina (10.59%).

B. Legal Liability of the Inter-American Development Bank

The governments that are members of the Organization of American States and on the Board of Executive Directors of the Inter-American Development Bank, and in particular the Government of the United States of America, are legally liable for the human rights violations perpetrated against the Río Negro community in the context of the Chixoy Dam project.

61. In its General Comment No. 2, the Committee on Economic, Social and Cultural Rights stated:

International agencies should scrupulously avoid involvement in projects which, for example ... promote or reinforce discrimination against individuals or groups contrary to the provisions of the Covenant [on Economic, Social and Cultural Rights], or involve large-scale evictions or displacement of persons without the provision of all appropriate protection and compensation. Every effort should be made, at each phase of a development project, to ensure that the rights contained in the Covenant are duly taken into account.

62. Additionally, the international community has reminded "all international financial, trade, development and other related institutions and agencies, including member or donor States that have voting rights within such bodies, to take fully into account … the obligations under international human rights and humanitarian law on the practice of forced eviction."

63. The International Law Commission (ILC) has begun to address the issue of the international responsibility of States for the internationally wrongful act of an international organizations. The ILC, in the provisionally adopted articles on the Responsibility of International Organizations, states in Article 1 that the said articles do indeed apply to the international responsibility of States for the internationally wrongful act of an international organizations. Furthermore, the provisionally adopted Article 3 states, inter alia, that an internationally wrongful act has occurred "when conduct consisting of an action or omission: (a) is attributable to the international organizations under international law; and (b) constitutes a breach of an international obligation."

64. States that make up the Inter-American Development Bank (IDB) all have human rights obligations. These States should not be able to ignore, or indeed violate, these obligations simply by organizing themselves into the IDB or by using the Bank as an agent to carry out policies or practices that violate their respective international human rights obligations. Therefore, each Member-State on the Board of Executive Directors of the IDB has violated its human rights legal obligations, as guaranteed by the American Convention of Human Rights or the American Declaration on the Rights and Duties of Man or both, to respect, protect and fulfill the human rights of the Río Negro community.

65. Indeed, impunity for human rights violations by such entities unfortunately seems to be the rule, as States simply violate their respective human rights obligations through the formation of corporations or inter-governmental organizations that then are used as agents of those States to carry out policies and practices that violate their respective international and domestic legal obligations. And that impunity is further entrenched when attempts are made to block victims of those violations from accessing remedies such as those provided by international and regional human rights fora such as the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.

66. The IDB has established basic guidelines with regards to how all IDB projects are implemented. According to the IDB, the actions performed by it during project execution are intended to:
" Ensure that projects are executed in such a way as to attain the planned objectives;
" Ensure that the approved financial resources are used in accordance with the covenants of the respective financing agreement and with the Bank's policies, rules, and procedures;
" Verify compliance by borrowers/beneficiaries/executing agencies with the contractual covenants and general rules established by the Bank;
" Advise borrowers/beneficiaries/executing agencies regarding the solution of problems that arise during project execution, so that projects will have the expected impact on national development; and
" Maintain an effective and efficient information system on loan operations.
67. Additionally, once a project is completed, the IDB's Evaluation Office (EVO) is responsible for performing independent, systematic evaluations of completed projects and informing the Bank and the borrowing country of its findings. The reports produced by EVO replace the reports produced under the former evaluation system - operations evaluation reports (OERs), project performance reviews (PPRs), and sector summaries. According to the IDB's own policies, the evaluation system is meant to be a participative process that must involve interested parties, so as to generate added value that meets the needs of the borrowers and the Bank.

68. While the Charter of the Inter-American Development Bank contains immunity clauses, these clauses do not apply to violations of human rights obligations. Article XI of the Charter (on status, immunities and privileges) states in Section 3 that "Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities." This clause does not preclude legal action against the Bank itself as an organization. With regards to individual immunity, however, Section 8 of Article XI of the Charter states that "All governors, executive directors, alternates, officers, and employees of the Bank shall have the following privileges and immunities: (a) Immunity from legal process with respect to acts performed by them in their official capacity, except when the Bank waives this immunity."

69. It is crucial to note that Section 1 on the scope of Article XI states that "To enable the Bank to fulfill its purpose and the functions with which it is entrusted, the status, immunities, and privileges set forth in this article shall be accorded to the Bank in the territories of each member (emphasis added)." This particular wording, and indeed the inclusion of Section 1 itself, serves to limit the scope of Article XI by implying that immunity shall be provided to the extent necessary to enable the Bank to fulfill its stated objectives. Indeed, human rights violations must lie outside the scope of the purpose and function of the IDB. Article XI, therefore, cannot be interpreted to mean that the Bank, and in particular the Board of Executive Directors, can act with complete impunity. Indeed, because they are limited solely to the purposes and objectives of the agency, the privileges and immunities of international organizations are known as "functional privileges and immunities," and, though modelled after those of states, differ from them in some measure, both in conception and content. Unlike states, international organizations are not "sovereign" and draw on no history of sovereignty and no tradition of sovereign immunity. Furthermore, in any event, courts have consistently held that such broad immunity clauses are unconscionable and thus null and void.

70. The language of Section 1 of Article XI therefore provides a means of redress to victims seeking to hold the IDB accountable for its role in human rights violations. Based on the IDB's own admission, the actions performed by it during project execution are intended to, inter alia, "ensure that projects are executed in such a way as to attain the planned objectives." Clearly, the project's "planned objectives" would not include human rights violations. Even if these violations would somehow expedite the realization of a project, the means by which to achieve this result would not be in keeping with the IDB's own stated ethos. Therefore, Section 1 of Article XI effectively limits the scope of the IDB's immunity clauses so as not to cover gross negligence, reckless disregard, or intentional acts which result in human rights violations. Immunity, therefore, should only be applied in the narrow sense; that is, with regard to the IDB's efforts to fulfil its own stated purposes. Since human rights violations fall outside of this framework, immunity does not apply. This conclusion is wholly consistent with standard legal norms on the application of legal immunity. For example, immunity cannot be used as a defence in situations where there is a demonstrable criminal intent, nor in situations of gross negligence or reckless disregard.

71. The IDB has not, to date, publicly acknowledged any responsibility for the massacres and other human rights violations at Río Negro. In fact, one is hard pressed to find any public statements or documents by the IDB which have anything to do with the Chixoy Dam Project at all. The only admission they have made relates to the sedimentary build up which has impeded the dam's function, noting that the IDB is now taking steps to prevent further erosion of the surrounding soil. However, by the IDB's own admissions with regard to how they implement, or should implement, their development projects, the IDB works to ensure that the project's goals are met and, in order to meet this goal also takes on a supervisory role. The IDB seeks information from partner organizations, such as INDE in the Chixoy case, and also "advise[s] borrowers/beneficiaries/executing agencies regarding the solution of problems that arise during project execution." Furthermore, the IDB undertook this role through, inter alia, periodic site visits to the area affected by the massacres and forced displacement.

72. In order to establish legal liability with respect to the IDB, we must address the following questions:

a) Was there was a duty to act, or refrain from acting, in a certain way on the part of the IDB?
b) Was that duty was breached by the IDB?
c) Was someone injured in conjunction with that action or in-action?; and
d) Was there causation between the act or omission and the injury?

73. Consistent with the IDB's own stated organizational policies and its international human rights obligations, the IDB has a duty to implement its development projects in a way which does not result in the violation of human rights. While the IDB's role is to "fulfill its purpose and the functions with which it is entrusted," this purpose cannot be legitimately seen to be in any way concomitant with human rights abuses such as forced eviction, torture and extra-judicial execution.

74. Based on the atrocities which occurred at Río Negro, it seems clear that the IDB was in the least, grossly negligent in meeting its responsibility to ensure that the Chixoy project was carried out in a responsible manner. Black's Law Dictionary defines gross negligence as "The intentional failure to perform a manifest duty in reckless disregard of the consequences as affecting the life or property of another." And defines gross neglect of duty as a "type of nonfeasance or failure to attend one's duties, either public or private." Indeed, the facts indicate that the IDB conducted its affairs with regard to the Chixoy Dam project with reckless disregard for the human rights of the Chixoy community.

75. The IDB failed to supervise adequately the Chixoy project. Such supervision, at a minimum, would entail genuine consultation with the communities to be displaced as well as monitoring the methods used to relocate and rehabilitate the effected population. Indeed, such consultation is required by General Comment No. 7 on forced evictions. Again, the repression suffered by the Río Negro community did not arise suddenly in 1982 when the massacres occurred, but rather represented a pattern of engagement with the community which was established early on. As early as 1980, these abuses were documented by the Inter-American Commission on Human Rights and were indeed generally known at the time. There is no excuse for the IDB to be unaware of the abuses which were occurring in conjunction with the Chixoy dam's construction. Yet, no evidence suggests that the Bank intervened in any way on behalf of affected communities. This degree of gross negligence and reckless disregard constitutes a breach of the Bank's fundamental duty to ensure that its projects are carried out in a way which does not result in grave human rights violations.

76. The fact that the injuries suffered by the community were associated with the Chixoy Dam's construction was a point addressed in detail above. This leaves us with the issue of causation, directly linking the IDB's gross negligence and reckless disregard to the injuries suffered by the affected communities. It is important to note that the IDB has been largely unwilling to disclose its internal documents on the Chixoy project, information which would help clarify what exactly was known by Bank officials at the time. Nonetheless, we can infer from information readily available at the time that the Bank either knew, or should have known, about the violent repression of the Río Negro community.

77. Given the well-known human rights situation in Guatemala at the time and the well-known patterns of abuse suffered by the Río Negro community and other similarly affected communities in the context of the Chixoy Dam project, it is reasonable to presume that Bank officials knew or should have known about what was going on with respect to the implementation of their project. Indeed, notes from a project manager disclose that IDB failed to comprehensively inspect the construction site and reservoir basin due to violence in the area. The Bank, however, took no responsibility with regards to the violence associated with the project's implementation, and effectively ignored the mounting vulnerability of the community. This gross negligence and reckless disregard on the part of the IDB, whether purposeful or not, inevitably sent a message that the community could be "dealt with" with impunity.

78. The IDB, even under its own stated procedures and policies, failed in its role to effectively supervise the Chixoy project. The IDB continues to refuse to learn from the Chixoy experience, and has not owned up in any way to its role in the atrocities suffered by the displaced communities. The Bank has even failed to effectively evaluate the project. By the Bank's own accounts, "the evaluation system is meant to be a participative process that must involve interested parties." Yet, no IDB official has consulted with the victims at Río Negro and no compensation has been offered to the surviving victims.

79. While funding agencies such as the IDB may not be direct perpetrators of human rights violations, the IDB nonetheless had a duty to ensure that the implementation of projects does not result in human rights abuses. In the Chixoy case, the IDB failed miserably to comply with this obligation. Had the IDB taken a different approach, had the it intervened, had it fulfilled its obligation to supervise the project as its own policies and human rights obligations require, the massacres likely would have been averted and the brutal forced eviction of the community of Río Negro likely would have never materialized.

VI. LEGAL LIABILITY OF THE WORLD BANK

A. Jurisdiction

The Inter-American Commission on Human Rights has jurisdiction over the governments that are members of the Organization of American States and on the Board of Executive Directors of the World Bank, and in particular the Government of the United States of America.

80. Among the stated values of the World Bank are "honesty, integrity, and commitment." The World Bank Group consists of five closely associated institutions, one of which, the International Bank for Reconstruction and Development, was responsible for directly funding and supervising implementation of the Chixoy hydroelectric dam project. The World Bank was established in 1945, and according to the World Bank's mission it "aims to reduce poverty in middle-income and creditworthy poorer countries by promoting sustainable development, through loans, guarantees, and non-lending - including analytical and advisory - services." The Board of Executive Directors (the Board) is the decision-making body of the World Bank, and responsible for day-to-day activities of the World Bank. The voting power, however, is not equal and certain States enjoy disproportionate power on the Board.

81. No governments were States Parties to the American Convention on Human Rights and had over five per cent of the voting power the Board of Executive Directors of the World Bank, respectively, at the time of the events at issue in this Petition. The Government of the United States, however, enjoyed 19.2 per cent voting power on the Board of Executive Directors of the World Bank and is also bound by the American Declaration on the Rights and Duties of Man.

B. Legal Liability of the World Bank

The governments that are members of the Organization of American States and on the Board of Executive Directors of the World Bank, and in particular the Government of the United States of America, are legally liable for the human rights violations perpetrated against the Río Negro community in the context of the Chixoy Dam project.

82. In its General Comment No. 2, the Committee on Economic, Social and Cultural Rights stated:

83. Additionally, the international community has reminded "all international financial, trade, development and other related institutions and agencies, including member or donor States that have voting rights within such bodies, to take fully into account … the obligations under international human rights and humanitarian law on the practice of forced eviction."

84. Like the IDB, States that make up the World Bank all have human rights obligations. These States cannot ignore, or indeed violate, these obligations simply by organizing themselves into the World Bank or by using the Bank as an agent to carry out policies and practices that violate their respective international human rights obligations. Therefore, each Member-State on the Board of Executive Directors of the World Bank has violated its respective human rights legal obligations, as guaranteed by the American Convention of Human Rights or the American Declaration on the Rights and Duties of Man or both, to respect, protect and fulfill the human rights of the Río Negro community.

85. Indeed, impunity for human rights violations by such entities unfortunately seems to be the rule, as States simply violate their respective human rights obligations through the formation of corporations or inter-governmental organizations that then are used as agents of those States to carry out policies and practices that violate their respective international and domestic legal obligations. And that impunity is further entrenched when attempts are made to block victims of those violations from accessing remedies such as those provided by international and regional human rights fora such as the Inter-American Commission on Human Rights and the Inter-American Court of Human Rights.

86. As a Specialized Agency of the United Nations, the World Bank is obligated not to defeat the purposes of the Charter of the United Nations (UN Charter). Additionally, the World Bank must work to further the objectives of the UN Charter, and of course must not undermine those objectives. This requirement is laid out in Article 59 of the Charter, which mandates that "the creation of any new specialized agencies require[s] accomplishment of the purposes set forth in Article 55." The purposes and objectives articulated in Article 55 include, inter alia, the promotion of "universal respect for, and observance of, human rights and fundamental freedoms for all." Furthermore, Article 103 of the UN Charter makes clear that "in the event of a conflict between the obligations of the Members of the United nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail." The World Bank knew or should have known that INDE, its partner in the Chixoy Dam project, was forcibly evicting the Río Negro community through the most brutal of means. By not intervening and by continuing to financially support INDE, the World Bank, along with its Member States and in particular its Board of Executive Directors, is complicit in those human rights violations and violated the legal obligations enshrined in the Charter of the United Nations to promote universal respect for, and observance of, human rights.

87. Furthermore, in many ways the arguments regarding the legal liability of the World Bank in this case are very similar to those made above with regard to the Inter-American Development Bank. First, as a lending agency, the World Bank had a duty to ensure that the project was implemented in such a way which did not result in the violation of human rights. Indeed, this would be entirely in keeping with the Bank's own stated policy and mission. Additionally, the World Bank's own documentation acknowledges its direct supervisory role. In its Staff Appraisal Report of 15 June 1978, the World Bank noted that some 1,500 persons would have to be removed from the reservoir basis and that "the Bank obtained assurances from Government and INDE that a program will be implemented to compensate adequately and, if necessary, resettle, those residents (about 1,500) of the area to be flooded by the reservoir whose living and working conditions have been adversely affected by such flooding" and that "INDE will prepare such a program and present it for Bank review by December 31, 1978." Even with such a strict supervisory role, the World Bank, regretfully and unlawfully, did nothing after the Government of Guatemala began to forcibly evict the Río Negro community through a series of brutal massacres.

88. Second, the World Bank breached its obligation by ignoring the human rights violations which occurred in the context of the dam's construction, as evidenced by unquestioning continued financial support for the Chixoy project, even when all evidence pointed to brutal and criminal implementation strategies. If anything, the World Bank was even more culpable than the IDB in that it actually granted its second loan instalment to the Government of Guatemala in 1985 - after the massacres had been carried out. This action clearly raises the threshold of legal liability, from gross negligence to reckless disregard. Certainly, not to have known at that time about the violence and repression at Río Negro would have required an extraordinary amount of dedicated ignorance on the part of World Bank officials. In all likelihood, World Bank officials were, in fact, all too aware of the situation. Indeed, in an admission against interest, a World Bank Social Development Specialist based in Guatemala City the told a COHRE fact-finding team in July 2003: "[The Chixoy Dam project] wasn't supervised in a sound manner, but what can you do about that now?" Witness for Peace has aptly observed:

According to the individuals interviewed in the Chixoy region - priests, church workers, a journalist, and a construction worker who worked on the Chixoy project from 1977 to 1982 - everyone who worked on the project and virtually everyone in the region knew about the violence associated with the project, particularly the violence at Río Negro. World Bank documents indicate that Bank personnel worked in supervisory capacities at the Chixoy site for up to three months each year from 1979 to 1991, including 1982. In 1984, the Bank even hired an "expert on resettlement policy to assist in the supervision function" of resettlement. In light of the testimonies, it is reasonable to assume that World Bank staff - especially project supervisors - knew about the violence against Río Negro as early as 1982.

89. Third, as discussed above, residents of the Río Negro community, and other similarly situated communities, suffered gross human rights violations - violations which occurred within the context of the Chixoy Dam project. Fourth, the inaction of the World Bank was directly related to the violence which the community experienced over the course of several years. Had the World Bank intervened it is likely that the outcome would have been much different. Such intervention should have included clearly communicating the expectations of the World Bank and thereby send an unequivocal message to the Government of Guatemala that the violence associated with the implementation of the Chixoy project was simply unacceptable. Certainly, jeopardizing the Bank's funding is probably about the last thing that the Government of Guatemala would have wanted at the time. Yet, the World Bank did not intervene, as it was required to, and by all accounts the intensity of violence only increased. The abuses committed by the PACs and the Guatemalan security forces began tentatively, with harassment. Later, these abusive tactics shifted to targeted "disappearance" and killing. By 1982, the violence culminated in massacres in which scores of persons were tortured and killed. And what was the message the perpetrators received from all of the funding and administrative agencies involved in the Chixoy project? Silence. As the Guatemalan authorities ratcheted up the violence, the complicity of the World Bank and IDB was deafening.

90. The Articles of Agreement of the World Bank provide many of the same immunity clauses as those discussed above in relation to the Inter-American Development Bank, and the legal concept of "functional privileges and immunities" applies equally to the World Bank. In fact, in most cases, the language is virtually identical. Article VII on Status, Immunities and Privileges states in its Section 1 (on "Purposes of the Article") that "To enable the Bank to fulfill the functions with which it is entrusted, the status, immunities and privileges set forth in this Article shall be accorded to the Bank in the territories of each member." Section 8 (on "Immunities and Privileges of Officers and Employees") provides that "All governors, executive directors, alternates, officers and employees of the Bank (i) shall be immune from legal process with respect to acts performed by them in their official capacity except when the Bank waives this immunity … ." However, Section 3 (on "Position of the Bank with Regard to Judicial Process") notes that "Actions may be brought against the Bank only in a court of competent jurisdiction in the territories of a member in which the Bank has an office, has appointed an agent for the purpose of accepting service or notice of process, or has issued or guaranteed securities." This final clause allows for legal action against the World Bank in the present case to be considered. Indeed, to do otherwise would create and maintain an environment of impunity for the World Bank and its Member States.

VII. Legal Liability of the Government of the United States

91. The Government of the United States is legally bound to respect, protect and fulfill the rights enshrined in the American Declaration on the Rights and Duties of Man, and the Inter-American Commission on Human Rights is competent to determine the allegations against the United States pursuant to Article 20 of the Statute of the Inter-American Commission on Human Rights and Article 23 of the Rules of Procedure of the Inter-American Commission on Human Rights, which establish that for all those Member States of the Organization of American States that have not ratified the American Convention on Human Rights, the Commission may examine petitions submitted to it and other information available and make determinations with respect to those States' obligations under the American Declaration on the Rights and Duties of Man.

92. As the principal member of Boards of Executive Directors of the Inter-American Development Bank and the World Bank, essentially with veto power over all decisions of both entities, the Government of the United States is particularly liable for the human rights violations against the Río Negro community. Indeed, the Government of the United States is the only permanent Executive Director on the Board of Executive Directors of the World Bank and the only member with over five per cent voting power with legal obligations under the Inter-American human rights system. As such, it was principally responsible for decision-making on both Boards with respect to the Chixoy Dam project.

93. Likewise, the Government of the United States is the only permanent Director on the Board of Executive Directors of the IDB, where at the time of the Chixoy forced eviction it enjoyed 35 per cent voting power, which, again, essentially gave it sole veto power over IDB projects.

94. Furthermore, part of the U.S. Government's rationale for World Bank and IDB funding of the Chixoy dam was to divert money to the Government of Guatemala for its so-called counter-insurgency campaign. In 1977, the Carter Administration, at least publicly, cut off funding to the Government of Guatemala due to its abhorrent human rights record. Soon after, however, the U.S. arranged for the Chixoy project funding in an effort, inter alia, to indirectly and covertly fund the Guatemalan Government. The Government of the United States continued to approve World Bank funding to Guatemala, including a 1978 loan in the amount of $72 million for the Chixoy dam project, along with other decision-making States. Indeed, analysts have determined that these funds went not only to construct the Chixoy dam, but to support the military policies of the Government of Guatemala. For instance, anthropologist Shelton H. David testified to the U.S. Congress that:

…it appears as if hydroelectric development in Guatemala was related to the modernization of the Guatemala Army and its concern to turn the northern lowlands into a vast cattle ranching, petroleum, mining, and timber frontier.

By carrying out this frontier-development program, with international assistance, the Guatemalan Army hopes to consolidate its own political and economic power.

95. Furthermore, the general complicity of the Government of the United States in Guatemala's so-called counter-insurgency campaign is well documented. By 1981, the Government of the United States discarded its pretense of concern about human rights in Guatemala. In 1982, the Reagan Administration supported the regime of General Efraín Ríos Montt, despite a United Nations resolution condemning that regime for human rights atrocities. By 1985, the U.S. financing of the regime, including its abusive and unlawful policies and tactics, rose to US$100 million.

96. With such support and funding, both for the Chixoy project specifically and for the Government of Guatemala's military campaign, both directly and indirectly through the World Bank and IDB, the Government of the United States has violated the human rights of the Río Negro community and similarly situated communities. In particular, the Government of the United States has violated Article I (right to life, liberty and personal security); Article II (right to equality before the law); Article V (right to protection of private and family life); Article VI (right to a family and to protection thereof); Article VII (right to special protection for all women during pregnancy and the nursing period and for all children); Article IX (right to inviolability of the home); Article XVIII (the right to resort to the courts to ensure respect for his or her legal rights), and Article XXIII (right to property) of the American Declaration on the Rights and Duties of Man.

VIII. DAMAGES

97. Petitioners respectfully reserve the right to address the issue of damages in a supplemental brief to the Commission.

IX. CONCLUSION

98. Petitioners request that the Inter-American Commission on Human Rights hold the Government of Guatemala, the World Bank, the Inter-American Development Bank and the Government of the United States jointly and severally liable for the human rights violations suffered by the Río Negro community and similarly situated communities from the Chixoy Dam reservoir basin as laid out in the forgoing Petition.

Respectfully submitted,

31 August 2004
______________________ ________
Bret Thiele, Esq. Date
Attorney at Law
Senior Legal Officer and Coordinator, ESC Rights Litigation Programme
Centre on Housing Rights and Evictions
208 Temple Bldg.
8 N. 2nd Avenue East
Duluth, MN 55802
U.S.A.
tel/fax: (218)-733-1370
e-mail: Bret@cohre.org