The International Legal Assistance Consortium (ILAC) has released a new rule of law assessment report, “A Window of Opportunity: Support to the Rule of Law in Guatemala”. The report examines the state of Guatemala’s justice sector after the closure of the International Commission against Impunity in Guatemala (CICIG) in September 2019. It discusses how recent threats against the justice sector have reversed much of the progress that was made to strengthen the rule of law during CICIG’s existence.
Guatemala cannot combat corruption and strengthen the rule of law without ensuring an independent and impartial judiciary. With a new incoming executive, the report underlines that the international community must seize the window of opportunity to re-engage with Guatemala in combating corruption. This will require finding new and effective models of development cooperation to ensure more sustainable ways of strengthening the rule of law.
ILAC is a global rule of law consortium based in Sweden, providing technical assistance to justice sector actors in conflict-affected and fragile countries. ILAC’s mission is to rapidly respond to and assess the needs of the justice sector in conflict-affected and fragile countries, and help strengthen the independence and resilience of justice sector institutions and the legal profession. Today, ILAC has more than 80 members including individual legal experts as well as organisations representing judges, prosecutors, lawyers and academics worldwide.
We at the International Legal Assistance Consortium (ILAC) launched our assessment report of the justice sector in Guatemala on October 10, in Washington D.C., and on November 6, in London (the report is available both in English and Spanish). ILAC, established in 2002, is an NGO based in Stockholm, Sweden, which conducts rule of law and justice sector assessments, coordinates programs, and engages in policy dialogue. As a consortium of over 50 professional legal organizations along with individual experts, we gather legal expertise and competencies from various contexts and legal traditions to help rebuild justice institutions and promote the rule of law in conflict-affected and fragile states.
ILAC’s report of Guatemalan justice sector
ILAC’s assessment team traveled to Guatemala in October 2017, and met with over 150 Guatemalan judges, prosecutors, lawyers, human rights defenders, and business leaders to assess the role and capacity of courts and prosecutorial services. The team also examined several thematic issues facing the justice sector in Guatemala today, including the legacy of Guatemala’s conflict and impunity, disputes involving development projects on land claimed by indigenous peoples and local communities, criminalization of protests, and violence and discrimination.
“A fragile peace”
Although Guatemala has been at peace for over 20 years, its history of inequality and a civil war that lasted over 30 years have left a legacy of impunity, corruption, racism, and violence which fundamentally threaten stability and equitable development. Since 2006, however, justice sector actors have been supported by the United Nations-backed International Commission against Impunity in Guatemala (known as CICIG) which aims to investigate criminal groups undermining democracy. CICIG may conduct independent investigations, act as a complementary prosecutor, and recommend public policies to help fight the criminal groups that are the subject of its investigations. This is an innovative institution for the United Nations and is unique in the sense that it combines international support, independence to investigate cases, and partnerships with the Guatemalan Attorney General’s Office.
While the assessment report identifies ongoing rule of law challenges in Guatemala, it highlights the vital role CICIG and its current Commissioner, Mr. Iván Velásquez of Colombia, play in supporting the Attorney General’s Office to address the identified challenges. In fact, the majority of our recommendations are reliant upon CICIG’s continued presence in Guatemala as the country’s judiciary is not yet equipped to address and resolve corruption and impunity on its own. The American Bar Association, an ILAC member, has stated that:
it would be impossible to instill the rule of law within Guatemala at this time without the support of an international body. While many prosecutors and judges have – at great personal risk – performed their responsibilities with integrity, the pressures on the criminal justice sector writ large are so great that it is not currently able to operate independently without international support.
An abrupt end to CICIG’s mandate may also potentially result in backsliding of judicial and prosecutorial independence and integrity. Our report therefore includes a specific recommendation for a four-year extension of CICIG’s mandate.
Our assessment report comes at a crucial time as the future of CICIG is in jeopardy. In August, Guatemala’s President Jimmy Morales announced that he would not extend CICIG’s mandate beyond its current expiration date in September 2019 (note that CICIG is currently investigating President Morales for illegal campaign financing). President Morales simultaneously barred Mr. Velásquez, who at the time was in the United States, from re-entering Guatemala. Subsequently, President Morales ignored an order by Guatemala’s Constitutional Court allowing Mr. Velásquez to return (the Constitutional Court has reaffirmed that order just this past Thursday). President Morales has also developed a rhetoric accusing CICIG of presenting “a threat to peace” in Guatemala and constructing “a system of terror.”
Our report is an acknowledgement of CICIG’s role in laying the foundation for a stronger and more resilient judicial system in Guatemala. And, in order to continue to build upon this foundation, we join the call for Guatemala to recommit to the work of CICIG under Mr. Velásquez and for an extension of CICIG’s mandate.
While we are neither the first nor the only observer to point out these challenges to the rule of law, we hope that the report will provide clear notice to state authorities that failure to address the documented and well-understood obstacles to the independence and effectiveness of the justice sector can only be taken as unwillingness to strengthen the rule of law in Guatemala. Without an effective and independent system of justice, the rule of law and human rights cannot be secured.
Two weeks ago, CICIG (International Commission against Impunity in Guatemala) revealed that the Partido Popular (PP), the former governing party of now disgraced and imprisoned former president Otto Pérez Molina and his—also incarcerated—vice president Roxana Baldetti, was engaged in a web of corruption far more extensive than initially thought. Shortly after reaching power, the party, under the direction of President Pérez Molina, had established an organized criminal structure that had seized the state, and developed an elaborate scheme of collusion between the local private sector and the state to enrich public servants and grant companies easy access to government contracts.
The revelations come just as the so-called Northern Triangle countries (Guatemala, El Salvador, Honduras) are about to receive a large infusion of international assistance through the $750 million U.S. funded Alliance for Prosperity that, rather than being limited to security sector support, seeks to stimulate economic development and strengthen democratic institutions. But given what CICIG has now revealed, are Guatemala and the other recipients ready to adopt the structural changes necessary to effectively channel and apply these funds, to address corruption at its roots?
CICIG was established in 2007 under the auspices of the United Nations to investigate organized criminal networks with links to the state. It is bound by Guatemalan law and must work closely with the country’s Public Ministry. CICIG’s operations have had their ups and downs, as has been documented in a recent report by the Open Society Justice Initiative. However, under the current leadership of Colombian prosecutor Iván Velásquez, it has made important strides in uncovering corruption and eroding impunity of even some of the most powerful.
CICIG’s most important case to date was brought to light in April 2015, when the investigatory body revealed a corruption scheme within the country’s customs authority. That case, named “La Línea,” implicated then-President Otto Pérez Molina and Vice-President Roxana Baldetti, as well as other high-level officials. The massive public outcry that followed led to the resignation of both the President and the Vice-President. Since then, CICIG and the Public Ministry have continued their investigations, and in the following months uncovered more such corruption rings involving high-level officials and prominent businesspeople.
Additional information retrieved through searches and phone taps exposed an even more extensive scheme than originally thought. In June 2016, CICIG concluded that the PP, the former government party, rather than having engaged in occasional (but serious) acts of corruption, was essentially an organized criminal enterprise whose primary purpose was to reach power to gain access to public resources for private gain. Continue reading →