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The International Commission Against Impunity in Guatemala/
Comisión Internacional contra la Impunidad en Guatemala(CICIG )
An effective model for combatting corruption
by Naqib Obaidi and Robbie Skinner
NotInMyCountry Fall Interns 2014
Guatemala has experienced many decades of instability, after a 36 year long civil war which ended in 1994, it continues to be is plagued by problems of corruption, political murder, and a disingenuous justice system. The killings of human rights activists by paramilitary groups and the rise of multinational drug cartels who bought off the police and judiciary, led the Guatemalan government to seek help from the UN Department of Political Affairs (UNDPA). In 20062007, this led to the establishment the International Commission against Impunity in Guatemala (CICIG). Since then there has been steady progress in not just reporting on corruption, but actually helping the government enforce and successfully prosecute the corrupt. This report aims to describe CICIG, its accomplishments, its effect on corruption as well as illustrate some of the challenges that lie ahead for this organization.
What is CICIG?
The Agreement to Establish the International Commission against Impunity in Guatemala (CICIG) took place on December 12, 2006 and after some inputs from the Guatemalan Constitutional Court, the agreement was ratified by Guatemala’s Congress. CICIG is an independent international body sponsored by the United Nations that has been set up to assist the Guatemalan government in investigating and prosecuting criminal behavior. According to the agreement there are three main objectives of CICIG :
First, investigate illicit security forces and clandestine security organizations and identify the structures of these illegal groups, including the links between such groups and State officials, their activities, operating modalities and sources of financing. Second, CICIG should help the State to disband clandestine security structures and illegal security groups, and promote the investigation, criminal prosecution and punishment of the crimes committed by the members of such groups. Third, CICIG will make recommendations to the State of Guatemala regarding public policies to be adopted—including the necessary judicial and institutional reforms.1
CICIG’s personnel structure consists of a Commissioner that is appointed by the SecretaryGeneral of the United Nations, the most recent appointment was commissioner Iván Velásquez of Colombia on August 31, 2013 replacing Francisco Dall’Anese of Costa Rica. They are in charge of CICIG’s operations and also act as a legal representative. The rest of the staff consists of international and national members that have a high level of expertise in investigation techniques and human rights who serve in the following units: Political Affairs, Department of Investigations and Litigation (including police, legal and financial investigation sections), Department of Information and Analysis, Department of
1 Agreement to Establish the International Commission against Impunity in Guatemala (CICIG) Article One. http://www.cicig.org/uploads/documents/mandato/cicig_acuerdo_en.pdf 2
Administration, Department of Security and Safety, and the Press Office2. The secretariat works directly under the Commissioner and is responsible for general administration. Under Article three of the agreement, CICIG has the authority to file administrative complaints against public officials, particularly against officials who attempted to prevent CICIG from fulfilling their mandate.
Structure of CICIG (diagram by Naqib Obaidi)
Legislative Advice and Reform
In accordance to their responsibilities and goals CICIG has proposed a number of institutional reform recommendations to the State of Guatemala to better tackle impunity and corruption. The legislative reform proposals are divided into two sets, the first set of legislative reforms comprised of several proposals including:
to amend the Amparo, Habeas Corpus and Constitutionality Law. to amend the Regulation of Motions in Criminal Proceedings. to amend the Use of Audiovisual Media for Witness and Expert Witness Statements in Criminal Proceedings. to amend the Changing of Identity and Relocating of Witnesses and People who Cooperate in Criminal Proceedings. to amend Effective Collaboration and Regulation of Benefits and Protection Mechanisms in the Antiorganized Crime Law.
2 http://www.cicig.org/uploads/documents/2012/COM06720120911DOC02EN.pdf (Pg.4) 3
to amend the Arms and Ammunition Law. Trafficking of persons, including illegal adoptions. Illegal trafficking of immigrants. Set of penal anticorruption measures (including the criminalization of unjust enrichment and other crimes), and the inclusion of disqualification as an accessory penalty. Disciplinary regimes of the Public Prosecutor's Office (MP), the Judiciary (OJ) and the National Civil Police (PNC). International Judicial Cooperation for criminal matters.
CICIG has played an integral part in influencing a sovereign nation on matters of corruption and addressing a culture of impunity that has been deeply rooted in Guatemalan culture over the years. Due to its success the Guatemalan government has asked for CICIG’s mandate to be extended twice, and their current mandate remains operational until 2015. CICIG’s efforts have resulted in popular support and trust from Guatemalan citizens. Furthermore, the positive rippling effect goes beyond citizen satisfaction. As of 2012, Freedom House has specifically attributed Guatemala’s improvement from a 4 to 3 rating, as well as their impressive drop of 23 per cent impunity as of 20133, to CICIG’s efforts. The figure below is a good illustration of CICIG’s ranking in the eyes of Guatemalan nationals when compared to other domestic institutions. CICIG is the only institution operating in Guatemala that a majority of citizens trust:
4 Accomplishments
As can be gleaned from above, since it began its operations in September 2007, CICIG has had tremendous success in Guatemala and helped bring hope back to a country that has suffered from a long
3 http://www.insightcrime.org/newsanalysis/lastritesforguatemalasantiimpunitywarriors 4 The Rule of Law In Central America: Citizens' Reactions to Crime and Punishment By Mary Fran T. Malone. A&C Black, Jan 12, 2012 pg. 13 4
history of impunity, particularly during the repressive dictatorships from the 1960s to 1980s. CICIG has been able to investigate security organizations and state institutions that were nurturing impunity for officials. Investigations included judges like Judge Julio Geronimo Xitumul, who improperly favored exPresident Alfonso Portillo when he was prosecuted for allegations of accepting bribes and embezzling millions of dollars in public funds5. It has helped to solve a number of important crimes, including the 2009 murdersuicide of Rodrigo Rosenberg Marzano, a prominent lawyer that nearly brought down the government6, the 2011 homicide of Argentine folksinger Facundo Cabral7, and the killings of 16 travelers from Nicaragua in 2008.8 The organisation's first commissioner, Carlos Castresana, highlighted some of these achievements at a news conference in New York in 2010 where he noted that its work had resulted in the dismissal of close to 2,000 policemen (almost 15% of the national force) for corruption9, an attorney general, 10 prosecutors and 3 justices of the supreme court.10 CICIG was also able to overcome a major obstacle in developing successful prosecutions by signing an interinstitutional agreement with the Ministry of the Interior and the Public Prosecutor’s Office to implement a wiretapping system in November 2008.11 Castresana, went on to state:
“We have sent to jail 130 individuals, the kind of people who had never been prosecuted in Guatemala before, a former president, a former defence minister, a former finance minister [and] two acting directors of the national police.”
All this has been possible only because the commission had been able to identify and work with reliable and committed policemen, prosecutors and actors “who are helping us to fulfil our mandate, to change the country,” he added.12 Despite Mr. Castresana observations, police corruption is still an ongoing issue and will be for the foreseeable future, but at least there now appears to be some light at the end of the tunnel. Today’s police are far better trained and equipped than they were before CICIG’s emergence. Moreover, not only have efforts been stepped up to hold individuals in such prominent positions accountable for their corrupt actions, it now appears as though authorities will have no qualms in prosecuting high level officials.
5 http://www.insightcrime.org/newsanalysis/cicignames18judgesofimpunityinguatemala 6 David Grann (April, 2011). “A Murder Foretold”. http://www.newyorker.com/magazine/2011/04/04/amurderforetold. The New Yorker. Retrieved 17 September 2014. 7 Tim Padgett (July, 2011). “The Murder of Facundo Cabral: Death Squads Still Roam Latin America”. http://world.time.com/2011/07/11/themurderoffacundocabraldeathsquadsstillroamlatinamerica/. Time. Retrieved 17 September 2014. 8 Mike Allison (11, August 2013). “How to reduce crime in the world’s most violent country”. http://m.aljazeera.com/story/2013810135741207607. Aljazeera. Retrieved 17 September 2014. 9 Guatemala: Country must find the way forward Mark Schneider, The Miami Herald, 23 Jun 2010 http://www.crisisgroup.org/en/about/staff/advocacy/washington/markschneider.aspx 10 United Nations (April, 2010). “UNbacked war on impunity in Guatemala should be strengthened”. http://www.un.org/apps/news/story.asp?NewsID=34430&Cr=guatemala&Cr1#.VBw56vldWAV. United Nations News Centre. Retrieved 17 September 2014. 11 CICIG. “Two Years of our work our commitment is to justice.” http://www.cicig.org/index.php?page=twoyearsofwork. Retrieved 19 September 2014. 12 Ibid. 5
Furthermore, CICIG recommendations also lead to the appointment of Attorney General Claudia Paz y Paz and allowed Judge Jasmine Barrios to try former President Efran Rios Montt for genocide.13 It was the environment that CICIG helped create that allowed Paz y Paz to go after and prosecute former presidents, money launderers, drug traffickers, and officials accused of extrajudicial execution. Similarly, Judge Barrios, with the assistance of Claudia Paz y Paz, managed to bring Efrain Rios Montt to justice for genocide and crimes against humanity in the High Risk Court, an institution that CICIG was instrumental in establishing.14 The trial was the first time a national judiciary tried a former head of state for genocide in his home country. 15 Whilst this demonstrates how far the justice system has progressed, the reversal of Montt’s conviction together with Paz y Paz being made to step down from her post 7 months early is clearly a sign of how much work still needs to be done.16 Similarly Judge Barrios was also dismissed after a complaint by a lawyer affiliated with the Montt trail. 17 Even so, CICIG is in an excellent position to play a leading role in taking on such work given the great strides they have achieved in the fight against corruption so far.
CICIG has also had significant success with regards to impunity concerning murders. Upon CICIG’s arrival, 98% of murders occurred without any conviction whatsoever. That figure has now been brought down to 90%.18 Homicides decreased for three consecutive years after peaking in 2009.19 Whilst these promising statistics cannot be attributed to the good work done solely by CICIG, there is no doubt that Guatemala is certainly in a much better state than it was before they existed.
This good work has not gone unnoticed by other countries too. Switzerland asserted that “CICIG has contributed to reinforce the competencies of the prosecution services of Guatemala” and Spain too acknowledged the achievements of CICIG, despite having to “carry out its task in conditions of great difficulty.” El Salvador offered its support and noted that it plays a vital part in establishing regional peace throughout Central America. A number of countries have even called on CICIG to enhance their role by urging the United Nations to reinforce the Commission’s capacity. Canada for example has called for the UN to guarantee “the safety and security of the commission’s staff as they undertake their important and often dangerous work.”20
13 See fn 12. 14 Ibid. 15 Biography of Judge Jasmin Barrios http://www.state.gov/s/gwi/programs/iwoc/2014/bio/index.htm 16 Romina RuizGoiriena (May, 2014). “A year after genocide trial, has justice been done?”. http://www.cnn.com/2014/05/03/world/americas/guatemalagenocidetrialanniversary/. CNN World. Retrieved 18 September 2014. 17 Introducing Judge Iris Yassmin Barrios Aguilar of Guatemala, a 2014 International Woman of Courage http://www.awiu.org/2014/04/23/introducing-judge-iris-yassmin-barrios-aguilar-of-guatemala-a-2 014-international-woman-of-courage/
18 See fn 12. 19 Ibid. 20 WikiLeaks (November, 2009). http://www.wikileaks.org/plusd/cables/09USUNNEWYORK972_a.html. Retrieved 17th September 2014. 6
Challenges.
A part of CICIG’s popularity among both nationals and international parties is that they are very transparent and realistic about their strengths, weaknesses, capabilities, goals, and challenges. They release a yearly report on the above mentioned issues and attempt to address them. One of their initial challenges in the second year of their operations was ensuring the new Supreme Court of Justice would administer justice impartially21. As the years have gone by progress has been achieved but as more and more interests of the corrupt are threatened the pushback from such entities become more complex, but not impossible, to counter. For example, in the fifth year report CICIG states that legal loopholes posed a great challenge as 70 % of important legislation proposed by CICIG has yet to be passed22. Proposed amendments faced a similar struggle and with the lack of legislation they have a difficult time fighting corruption. Even so, they welcomed the recent passing of the Anti Corruption Law. The law will help to tackle unjust enrichment in Guatemalan institutions as well as other crimes by imposing fines and even prison sentences to public officebearers who commit this crime or other acts of corruption.23 Indeed, whether it does so or not in the long run remains to be seen. They also found that organized crime had to be tackled differently with prosecutors, analysts, and police all working together strategically. Furthermore another challenge they faced was the stagnation of cases because the proper legal apparatuses were not in place. A problem that still persisted even in the fifth year of their work was the lack of impartiality on behalf of the judges and CICIG has now focused their efforts on reforming the judicial system. By the sixth year some challenges seem to persist like the impunity of certain bodies of government, the unjust rulings of a minority of judges, and protection of witnesses24.
21 Two Years of Work: Committed to Justice. Pg. 20. http://www.cicig.org/uploads/documents/informes/INFORLABO_DOC02_20090901_EN.pdf 22 http://www.cicig.org/uploads/documents/2012/COM06720120911DOC02EN.pdf CICIG Report: Year 5. Pg.39. 23 CICIG (November, 2012). “Anticorruption law enters into force”. http://www.cicig.org/index.php?page=004320121122E. Retrieved 19 September 2014. 24 http://www.cicig.org/uploads/documents/2013/COM04520130822DOC01EN.pdf CICIG Report: Year 6. Pg 3536