Tomuschat, Christian b.June 23, 1936; Stettin (Pomerania), Prussia
Before being appointed head of the Guatemalan Truth Commission in 1997, Christian Tomuschat already looked back on a considerable career in the realm of law. Tomuschat studied law in Heidelberg and Montpellier, France.
He held visiting professorships in Mainz and Tubingen, was professor for public law and in particular international and European law in Bonn, before becoming professor for public law at Humboldt University, Berlin. He was involved in work for the German federal government and the European Union, and repeatedly participated in United Nations activities like the Human Rights Committee under the International Covenant on Civil and Political Rights (1977—1986) and the International Law Commission (1985—1996). In 2003 he was awarded a doctor honoris causa from the law school at the University of Zurich. To- muschat has authored a number of books and articles, among them Human Rights— Between Idealism and Realism (2003).The Guatemalan Commission for Historical Clarification (Comision para el Es- clarecimiento Historico, CEH), which To- muschat headed, was established by virtue of what has become known as the Oslo Agreement of June 23, 1994. Its mandate was to undertake the clarification of human rights violations and acts of violence that occurred during over thirty years of armed confrontation between government forces and guerilla insurgents. Based on its findings, the CEH was supposed to formulate recommendations with the objective of promoting peace and national harmony in Guatemala. Tomuschat, who had previously served as UN special rapporteur to Guatemala, was chosen to head the CEH. In addition to Tomuschat, the truth commission was made up of two Guatemalans, a lawyer and a social scientist. Choosing a mixed composition of Guatemalans and a foreigner for the commission was intended to guarantee an element of independence and impartiality to shield the CEH from any suspicion of bias.
A foreigner like the German Tomuschat was considered unlikely to be pursuing political objectives; the two Guatemalans were to represent the ladino and indigenous communities. According to the Oslo agreement, the CEH was supposed to start its work on the day of the conclusion of the Agreement for a Firm and Lasting Peace, the final agreement of the peace process. It was given a period of six months from that date, as well as an option to extend its mandate once for another six months. This time frame was an unrealistic one, especially because the members of the future CEH had to be chosen after the conclusion of the final peace agreement, which was not concluded until December 29, 1996. Therefore, it was impossible for the commission to begin its work on that same day. Tomuschat was named as the commission’s coordinator on February 8, 1997. He then proceeded to appoint the two Guatemalan members, Otilia Lux de Cotι and Alfredo Balsells. Staff and work spaces were also needed, because by themselves the three members of the CEH could not fulfill the task assigned to it. As a consequence, actual work did not start until mid-April 1997. It was therefore very unlikely that the truth commission would be able to accomplish its task within the set time frame. Another reason for this was the broad mandate to investigate the human rights violations and acts of violence connected with the armed confrontation. Out of necessity the CEH decided to prioritize attacks on life and personal integrity, especially extrajudicial executions, forced disappearances, and sexual violations. Yet even though the CEH limited its investigations and drew on data from other organizations, it still took about two years to complete the work.The CEH was created without any kind of budgetary resources, so that until the end of July 1997 it was mostly concerned with raising funds. The investigative work in the countryside began on September 1, 1997. The CEH conducted over 7,000 interviews, sometimes with individuals and sometimes with groups.
These were complemented by secondary research. The hearing of witnesses took place confidentially, partly to reassure and protect witnesses. Very few members of the military and the police forces volunteered statements and the CEH was not given the right to compel them. Though it initiated a campaign inviting most of the military and police officers who had held high posts during the subsequent dictatorial regimes to appear before it, on the whole the Guatemalan government and its various organizations proved very uncooperative and pursued a deliberate strategy of obstruction. The CEH lacked subpoena powers and was not authorized to undertake searches. The guerillas cooperated with the truth commission but left questions unaddressed as well. The investigative work was completed at the end of April 1998.The report itself included broad statistical findings documenting deaths and disappearances. It identified the violence as fundamentally originating with the state. The historical section of the report ana
lyzed specific kinds of human rights violations, using illustrative cases. The report stated that, according to the CEH’s judgment, genocide had been perpetrated at times and in places during the period of armed confrontation. In accordance with its mandate, the truth commission did not assign individual blame. This was the case even though several of the acts of violence described in the CEH report did not fall under the Law on National Reconciliation, an amnesty adopted a few days before the conclusion of the final peace agreement. The report was not to convict anyone, not even in an indirect fashion. Because some crimes were excluded from the amnesty, penal prosecution was reserved regarding these most serious of crimes. The CEH report did, however, determine that the origin of the conflict, as well as the majority of the violence, could be attributed to the Guatemalan state.
Claudia Haake
References and Further Reading
Chapman, Audrey R., and Patrick Ball. “The Truth of Truth Commissions: Comparative Lessons from Haiti, South Africa, and Guatemala.” Human Rights Quarterly 23 (2001): 1-43.
Commission for Historical Clarification.
Commission for Historical Clarification Report. At http://hrdata.aaas.org/ceh (cited January 12, 2004).
Jonas, Susanne. Of Centaurs and Doves: Guatemala’s Peace Process. Boulder, CO: Westview, 2000.
Tomuschat, Christian. “Clarification Commission in Guatemala.” Human Rights Qua.ie.ly 23 (2001): 233-258.