1 AGAINST THE ODDS: CICIG IN GUATEMALA ACKNOWLEDGMENTS 3 EXECUTIVE SUMMARY 15 INTRODUCTION 19 THE VORTEX OF GUATEMALAN POLITICS 19 Background: Formal State, Informal Elite Control 21 Guatemala’s Oligarchy in Transition 22 The Peace Accords and Challenges to the Old Order 25 New Competition and New Instability 26 Portillo and the New Politics 28 FROM CICIACS TO CICIG 29 Human Rights NGOs Seek Help 30 The UN Proposes an Alternative 31 Guatemala and the UN Negotiate CICIACS 32 Congress and Court Reject the Proposal 33 A Slow Revival 33 Negotiating a New Model 36 Back to the Congress for Ratification 37 The Phoenix Finally Rises 38 CICIG IN GUATEMALA: 2008-2016 39 The Castresana Years 54 Dall’Anese and CICIG’s Decline 70 Ivan the Terrible and CICIG’s Resurrection 87 CICIG: AN ASSESSMENT 88 The Strategy Challenge 96 Structure and Oversight 100 Working with the Office of the Public Prosecutor 103 Overcoming Obstacles in the Judiciary 104 Legislative and Constitutional Reform 104 The Role of the International Community 106 The Fragility of Success 109 THE CICIG MODEL AND ITS CHALLENGES 111 Understanding the Problem 112 Solving the Constitutional Issues 113 Getting the Mandate Right 113 Getting the Structure Right 115 Ensuring Government Commitment and a National Coalition 116 Finding a Way to Work with National Institutions 117 Preparing for Blockages 119 Pursuing a Broader Role for the International Community 120 CONCLUSION 122 ENDNOTES OSJI_Guatamala_Pages_g.indd 1 3/1/16 10:43 AM OSJI_Guatamala_Pages_g.indd 2 3/1/16 10:49 AM 3 AGAINST THE ODDS: CICIG IN GUATEMALA EXECUTIVE SUMMARY The International Commission against Impunity in Guatemala (CICIG) began with a Guatemalan civil society proposal in 2002 for an international commission to investigate threats from the remnants of the military’s counterinsurgency intelligence networks against organizations investigating crimes committed during the country’s 36-year internal conflict. The United Nations transformed the proposal into an international prosecutor’s office empowered to independently investigate and prosecute under Guatemalan law. It did so because it saw broader, and graver, menaces to state stability from rapidly growing national and transnational organized crime groups overwhelming frail, and often-compromised, state institutions. The Alfonso Portillo government signed an agreement to create the International Commission Against Illegal Security Groups and Clandestine Security Organizations (CICIACS) in 2003. However, the Guatemalan Congress and the Constitutional Court subsequently rejected the agreement—Congress was hostile to international meddling, and the Court considered the power to prosecute the unique province of the country’s Office of the Public Prosecutor. OSJI_Guatamala_Pages_g.indd 3 3/1/16 10:43 AM 4 AGAINST THE ODDS: CICIG IN GUATEMALA Nevertheless, a year later, a new government led by conservative Óscar Berger, concerned about the continuing growth of organized crime, approached the United Nations again for help. Again working with Guatemalan civil society, they negotiated a version of CICIACS without the sovereignty-encroaching independent prosecutorial capacity. This version, CICIG, also met with strong political opposition from Congress, but was finally approved after a tumultuous ratification process in late 2007. It began work in early 2008. CICIG faced a formidable task in Guatemala. Since the colonial era, a small economic elite—whose agricultural and early-industrial wealth were built on the labor of the majority indigenous population—had dominated the state. But this dominance had frequently been challenged, particularly by the military, including during the 1960–96 conflict. Since the 1990s, both organized crime and an emerging elite using the tools of electoral democracy and embedded clientelistic practices to compete for influence in state institutions gained significant political influence. The fault lines generated by this marriage of past and present— political and economic competition centered on state capture, a lack of incentives for major political and economic actors to support structural political reforms—left CICIG with little firm ground upon which to work. THE FIRST EIGHT YEARS THE COMMISSION ENTERED GUATEMALA IN LATE 2007 TO MUTED EXPECTATIONS. CICIG was a novel experiment with no roadmap, and its capacity to promote change in the judicial sector without the ability to prosecute on its own was uncertain. CICIG struggled to organize and implement a strategy to respond to systemwide resistance to its work—resistance that came from the justice sector, Congress, and political and economic actors protecting vested interests threatened by CICIG’s investigations. Nonetheless, the Commission would produce important, but chronically uneven and often isolated, results over much of its eight years in Guatemala. These results improved dramatically in 2015 when CICIG’s third commissioner, Iván Velázquez, pulled together the strands of his predecessors’ legacies and launched a series of corruption investigations that served as a catalyst for significant political change. Carlos Castresana, CICIG’s first commissioner, faced enormous challenges building CICIG from scratch. At the same time, he faced resistance from prosecutors and judges as he edged the Commission into investigations. In response, he discovered the efficacy of cultivating a powerful public persona, using the media to shed light on impunity and challenge those impeding the Commission’s work. CICIG’s spectacular resolution of the Rosenberg case saved the government of President Álvaro Colom from murder charges that would have led to its collapse. CICIG also participated in the conviction of former-President Portillo for corruption and unearthed an illegal security operation carrying out targeted killings and social cleansing run by President Berger’s interior minister, Carlos Vielmann. Guatemala had never witnessed battles against impunity waged this publicly, or on this scale, before. Castresana established CICIG’s focus on investigations, even if these were more opportunistic than strategic; established a model for working with the Office of the Public Prosecutor and the Ministry of Justice; obtained the tools needed for effective investigations; launched a broad OSJI_Guatamala_Pages_g.indd 4 3/1/16 10:43 AM 5 AGAINST THE ODDS: CICIG IN GUATEMALA set of legal reform proposals; and opened the door to the appointment of an outstanding attorney general, Claudia Paz y Paz. But his crusading style, opportunistic alliances, growing list of opponents, and an uncooperative government caught up with him in mid-2010, and he resigned in frustration. Castresana’s replacement, Francisco Dall’Anese, brought a different approach to CICIG’s work. Graced with a strong, independent, reform-oriented attorney general, he shunned the spotlight his predecessor had sought, dropping CICIG’s media profile in deference to the Public Prosecutor. Nonetheless, a 2012 controversy over the handling of the Vielmann scandal and frustrations with a series of judicial setbacks on CICIG cases forced him into the public eye. Skirmishes with the judiciary—fought through the media—compromised his position, and he reduced emphasis on independent CICIG cases, withdrew from public activities, and focused on planning for the closure of the Commission in 2013. The Commission struggled for relevance, strategically adrift. By the time a CICIG letter defending the integrity of the Ríos Montt trial gave the government the excuse it needed to push for his ouster, Dall’Anese was left with few friends and no political leverage in Guatemala or New York. He was forced to resign in 2013. CICIG had produced an ambiguous record in six years. Its achievements—the major cases, the pressure on impunity networks in the judiciary, the reform agenda—were notable. Nonetheless, CICIG had made little visible progress describing or mapping the criminal networks and organized criminal structures at the heart of its mandate. It had been distracted by tangential Carlos Castresana, CICIG’s first commissioner, faced enormous challenges building CICIG from scratch. At the same time, he faced resistance from prosecutors and judges as he edged the Commission into investigations. OSJI_Guatamala_Pages_g.indd 5 3/1/16 10:43 AM 6 AGAINST THE ODDS: CICIG IN GUATEMALA cases, such as bus extortions, illegal adoptions, and garden-variety embezzlement. NGOs, the press, and the international community hailed CICIG’s involvement in the process of electing judges as a contribution to transparency, but it had too often relied on opaque evidence to build its cases and had lost some ability to fruitfully engage with the courts. Iván Velázquez inherited CICIG at perhaps its lowest moment. President Otto Pérez Molina insisted that the commissioner focus on strengthening national institutions, not new investigations, as the Commisison prepared to close. At the same time, traditional and emerging elites and their clientelistic networks were organizing to ensure control over the 2014 judical sector elections in time for presidential and congressional elections in 2015. Velázquez overcame early slips, particularly a proposal to organize a national conference on judicial reform repudiated by the president, and avoided open confrontation with the government until he, too, was forced to publicly respond—in the end, to no avail—to the overt manipulation of the 2014 judicial sector selections, including the ouster of Claudia Paz y Paz as attorney general. But Velázquez