Eric Bybee and Dr. George Handley, Humanities
The primary objective of my project was to explore the relationship between customary law and lynching in a Mayan town in the Guatemalan highlands. Customary or traditional punishments occur with much greater frequency than lynchings, but the latter occurs often enough that it has come to be seen as somewhat of a phenomenon in post-conflict Guatemala. In exploring the relationship between the two, the central question I sought to answer was how two similar crimes that occurred in the same community could be punished by customary law on the one hand and lynching on the other. In order to best answer that question, I will first established a basis for the problem of collective violence in Guatemala by summarizing the conclusions and theories that others have reached regarding its causes and effects. After reviewing the literature on the topic, I will focus in on my field site of Nahuala to see which of the theories on the topic seem most relevant in describing the lynching that occurred there.
Once I have established a basis for lynching and described it in Nahuala, I will then do the same with customary law, describing it first generally and then in the context of my field site. My purpose throughout is to explain processes occurring at the national level by describing local events and the perceptions that exist about them. In other words, I will tell the story of the lynching, its aftermath, and subsequent re-initiation of customary punishment in Nahuala and then attempt to make broader connections to the rest of Guatemala. My study of lynching in Nahuala shows that’s its primary causes are a lack of access to adequate justice and the custom of communal punishment inherent in Mayan culture. The community is responding to the problem of collective violence through the reinterpretation and reestablishment of appropriate forms of communal justice, the reinvestiture of power in the town’s principales, and the codification of both.
According to a UN study, between 1996 and 2001 there were 421 reported lynchings in Guatemala involving 817 victims and leaving 215 people dead for an average of roughly two per week (MINUGUA, 2002). As academics and other organizations have attempted to explain this growing phenomenon, theories regarding its causes have proliferated as well. The aforementioned UN study found a correlation between the number of incidents of violence that a region suffered during the war, its relative index of poverty, and the number of post-conflict lynchings that occurred there. Jim Handy indicates that the causes lie in “a collapsing peasant economy, insecurity of all sorts, and an unraveling of the social fabric in rural communities through the militarization of rural Guatemala” as well as the imposition of an “illegitimate” state legal system (Handy, 2004). A study conducted by a Guatemalan judge emphasizes the role of the armed conflict and specifically the way that the army, guerrilla, and Civil Self-Defense Patrols (government-mandated paramilitary groups that, at their height, incorporated nearly a million civilian males) functioned as “schools of dehumanization” and became the “seed” of post-conflict communal violence (Garcia, 2004). Another study suggests that lynching is “an attempt by embattled communities to reassert their autonomy…to reassert themselves collectively as agents rather than victims…” (Godoy, 2004).
Customary law is different than lynching in that it exists in every Mayan community, usually involves some form of public punishment, and doesn’t end in death. These public punishments are protected under the constitution which has essentially set up an alternate justice system for Mayan people. Punishments include everything from whipping people in public to making them kneel on rocks for prescribed period of time. During the three months that I spent in Nahuala, there were a total of seven customary punishments meted out on two thieves, three gang members, three girls, about 20-30 of the town’s drunks, and a group of three men and three women convicted of kidnapping. While interviews and survey data indicate that a majority of Nahualenos are in support of the recently reinitiated punishments and think that it will help reduce the amount of delinquency, these public events are not without their critics. For example, the mothers of two girls punished on the balcony of the municipality were very critical of the security committee that administers the public punishments and made their feelings known during the event.
As the administrative secretary at the courthouse pointed out, there are some inherent difficulties with having dual systems of justice in one country. Being a ladino, he said that he felt discriminated against by the fact that he could receive a prison sentence for something like selling drugs and an indigenous person could get off with a public punishment. Another problem is that the application of indigenous justice nullifies the ability of the state to punish someone for the same offense afterwards because of constitutional laws that exist about punishing a person twice for the same crime. For example, after the two girls were punished on June 28th they were taken down to the courthouse to be put under house arrest under the supervision of their parents. Upon arrival they were informed that the justice of the peace couldn’t do anything because indigenous justice had already been meted out and that the police were actually breaking the law by taking them into custody after the punishment.
Criticisms aside, both informal interview and survey data convincingly indicate that the people of Nahuala think that they public punishments are an effective way to dealing with local crime. The incidents that occurred prior to the formal reinitiating of public punishment in Nahuala also support the notion that public punishment is an effective way of avoiding communal violence. While not perfect, even the most drastic types of established customary punishment are preferable to lynching, and its existence is necessary to make up for the lacks in the national law. The reinterpretation of appropriate forms of public punishment, the reinvestiture of power in the community elders, and the codification of these norms has worked to limit the amount of lynching in Nahuala and could possibly work for other communities in other parts of the country. Indeed, the Presidential Commission on Human Rights recently declared Nahuala a municipio “Amigo de la Paz” in part for the way in which they are using customary law to decrease delinquency and avoid collective violence. Whether or not the reforms initiated in Nahuala are used elsewhere, the reality is that a general lack of justice and the obfuscation of indigenous custom have created legal space that, until defined by some means, will continue to be filled with the victims of communal violence.