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Thesis, Which I Finished in 2011, About CICIG and the Guatemalan Civil War

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Thesis, Which I Finished in 2011, About CICIG and the Guatemalan Civil War UvA-DARE (Digital Academic Repository) Crime and peace International interventions to cope with rule of law challenges in Latin America Wirken, S.J. Publication date 2019 Document Version Final published version License Other Link to publication Citation for published version (APA): Wirken, S. J. (2019). Crime and peace: International interventions to cope with rule of law challenges in Latin America. General rights It is not permitted to download or to forward/distribute the text or part of it without the consent of the author(s) and/or copyright holder(s), other than for strictly personal, individual use, unless the work is under an open content license (like Creative Commons). Disclaimer/Complaints regulations If you believe that digital publication of certain material infringes any of your rights or (privacy) interests, please let the Library know, stating your reasons. In case of a legitimate complaint, the Library will make the material inaccessible and/or remove it from the website. Please Ask the Library: https://uba.uva.nl/en/contact, or a letter to: Library of the University of Amsterdam, Secretariat, Singel 425, 1012 WP Amsterdam, The Netherlands. You will be contacted as soon as possible. UvA-DARE is a service provided by the library of the University of Amsterdam (https://dare.uva.nl) Download date:02 Oct 2021 UNIVERSITY OF AMSTERDAM DISSERTATION UNIVERSITY OF AMSTERDAM DISSERTATION Sander Wirken In 21st century Latin America, many countries face criminal violence on the scale of civil war. Whilst street gangs and drug traffickers defy the state’s monopoly on the use of force from below, high-level government corruption and human rights violations by state actors defy the legitimacy of the state from the inside. What the international community can do to assist states that face the simultaneous challenge of bottom-up and top-down rule of law undermining crime is the Crime and Peace central question guiding this dissertation. This dissertation includes three in-depth case studies of Plan Colombia, the ICC preliminary investigation of Colombia, and the International Commission Against Impunity in Guatemala (CICIG). Sander Wirken holds an LL.M. (cum laude) in International Public Law from the University of Amsterdam and an M.Sc. (cum laude) in International Security from Sciences Po Paris. He is co-founder of NGO Sander Wirken Niños de Guatemala and co-director of award-winning documentary Burden of Peace. He currently works at the Dutch Public Prosecutor’s Office. Crime and Peace International interventions to cope with rule of law challenges in Latin America Crime and Peace CRIME AND PEACE International interventions to cope with rule of law challenges in Latin America ACADEMISCH PROEFSCHRIFT ter verkrijging van de graad van doctor aan de Universiteit van Amsterdam op gezag van de Rector Magnificus prof. dr. ir. K.I.J. Maex ten overstaan van een door het College voor Promoties ingestelde commissie, in het openbaar te verdedigen in de Agnietenkapel op vrijdag 6 december 2019, te 10 uur door Sander Jori Wirken, geboren te Amsterdam Promotiecommissie: Promotor: prof. mr. dr. H.G. van der Wilt Universiteit van Amsterdam Co-promotores: prof. dr. D. Abels Universiteit van Amsterdam prof. dr. G.Y.J.M. Mettraux Universiteit van Amsterdam Overige leden: prof. dr. B. van Rooij Universiteit van Amsterdam prof. dr. Y.M. Donders Universiteit van Amsterdam prof. dr. M. de Wilde Universiteit van Amsterdam prof. dr. H. DuffY Universiteit Leiden prof. dr. H.O. Olásolo Universidad del Rosario, Bogotá Faculteit: Faculteit der Rechtsgeleerdheid “Peace or Violence – Qu’est-ce que j’en sais moi ?” - Stromae PROLOGUE AND ACKNOWLEDGEMENTS When I was living in Guatemala for the first time in 2005, I was struck by the level of criminal violence in the country. Violent crime was so massive that in Guatemala, in times of formal peace, more people were dying of violence than on average died during Guatemala’s gruesome 36-year civil war. How can peace be more violent than war? It seemed obvious to me that impunity must have something to do with it. Of the approximately 6000 murders per year in Guatemala, only 2% were solved at the time. Another country that fascinated me was Colombia. In that country, the decades-old civil war has interacted in myriad ways with drug-related crime. Are the FARC a guerrilla army, financing their liberation struggle with the proceeds of drugs; or are they a drug trafficking organization legitimizing their violence with a discourse of revolution? And what about the paramilitaries: are they parties to an armed conflict or rather just drug criminals? Or are the civil war and drug-related crime not separable, as the phrase ‘The War on Drugs’ may seem to suggest? What the distinction between ‘war’ and ‘organized crime’ means, and what to make of the seemingly anarchic crime escalation in Latin America, are the questions that sparked this research. Furthermore, I noticed an innovative intervention in the field of international criminal law gaining remarkable results: CICIG, the International Commission Against Impunity in Guatemala. When I started law school in 2003 my main source of inspiration was the ICC, which had started operations in 2002. But as time progressed, the limitations of the ICC became ever more apparent to me. The potential of alternative approaches interested me, in particular CICIG. The Commission revolutionized criminal law in Guatemala. When prominent Guatemalan lawyer Rodrigo Rosenberg was murdered in 2009, a post-mortem published video appeared in which Rosenberg accused then-president Colom of his murder. The Guatemalan political order was shaking on its foundations. CICIG brought evidence – witness testimony, but also phone taps and ballistic analysis – to court in a way rarely if ever seen before in 7 Guatemala. I wrote my master’s thesis, which I finished in 2011, about CICIG and the Guatemalan civil war. In the final phase of writing my master’s thesis, a breakthrough occurred in Guatemala: thanks to the intervention of CICIG, Claudia Paz y Paz, a renowned human rights activist, was appointed Attorney General. This appointment sparked my interest, and together with my friend and documentary maker Joey Boink I approached Claudia Paz y Paz and asked if we could make a film about her. She agreed, and Joey and I followed her for three months late 2011. Whilst filming, I learned that the picture I had formed of CICIG in the course of my master’s thesis was incomplete. I decided that I wanted to deepen my understanding of CICIG and of what was going on in Guatemala, and started my PhD. This PhD thesis would not have been possible without the inspiration and support of my promotores: Harmen van der Wilt, who supervised my master’s thesis, encouraged me to consider doing a PhD, and guided me through the process with gentle yet resolute care; Guénaël Mettraux, who kept me sharp with immediate and insightful comments on all the draft chapters I submitted; and Denis Abels, who provided me with dozens of valuable suggestions. I could honestly not have wished for a better team of supervisors. I owe many more for their inspiration and encouragement. Two persons in particular have inspired me. Claudia Paz y Paz, in the course of filming Burden of Peace, showed me the PhD thesis she had written on cultural genocide at the University of Salamanca. As she was leading the process that would culminate in arrest warrants for genocide against two former heads of state, she confirmed me in the idea that doing a PhD myself would be the right choice. And Iván Velásquez, prosecutor and investigative judge from Colombia, who unraveled parapolítica before indicting former and acting presidents in Guatemala as CICIG Commissioner. Both are the ultimate embodiment of integrity, and both have made this world a bit better through their relentless efforts in favor of justice. They have inspired me to join the Dutch Public Prosecutor’s Office after nearly five years at the University of Amsterdam, and 8 I hope to be able to contribute to the legacy of their bright examples. Any effort at naming everybody who contributed one way or another to this thesis would inevitably lead to an incomplete result. I shall therefore be concise. I want to thank my colleagues at the criminal law department of the University of Amsterdam, everybody involved in the making of Burden of Peace, and everybody who provided me with input on my research questions, particularly in Guatemala and in Colombia. My friends, in particular my fantastic paranimfen, who provided me with unconditional support and companionship. Speaking of unconditional support and companionship, where would I have been without my parents and my little brother? In the course of writing this thesis, little Ivan entered this world, making it bright and light. This thesis has in common with little Ivan that it would never have seen the light of day if it weren’t for Hanna. If it weren’t for you Hanna, I would not have started this PhD thesis, let alone finish it. Thank you. 9 10 TABLE OF CONTENTS PROLOGUE AND ACKNOWLEDGEMENTS........................................................... 7 TABLE OF CONTENTS....................................................................................... 11 CHAPTER 1 INTRODUCTION ............................................................................ 15 1 PROBLEM STATEMENT AND RESEARCH QUESTION .................................................. 16 2 THEORETICAL FRAMEWORK – RULE OF LAW AND ITS UNDERMINING ........................... 18
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