Rule of Law Backsliding and a Rapidly Closing Space for the Justice System in Guatemala

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The rule of law has rapidly continued to backslide in Guatemala since my last post on ILAC’s report on the Guatemalan judiciary and our call for support to the United Nations-backed International Commission Against Impunity in Guatemala (CICIG). I had originally planned to discuss in this post how the current situation in Guatemala reflects the challenges and opportunities for promoting justice globally in the context of the United Nations 2030 Agenda for Sustainable Development. But, with such significant rule of law backsliding, the more pressing question is if it is possible to push back against this rapidly closing space for the justice system in Guatemala without CICIG?

Rule of law backsliding

In 2018, Guatemala’s Constitutional Court ruled against President Morales’s attempts to bar CICIG’s Commissioner from reentering the country, and since the beginning of the new year President Morales has retaliated against the Guatemalan justice system.

On January 7, President Morales declared that he was unilaterally and immediately terminating the agreement establishing CICIG even though its mandate does not expire until September. He also demanded that all CICIG officials leave the country within 24 hours. In his declaration he stated that CICIG had severely violated national and international laws and that it put the security, public order, governance, human rights, and above all the sovereignty of Guatemala at risk. This type of authoritarian overreaching to attack and dismantle the rule of law follows the pattern of authoritarian trends globally, as evidenced by V-Dem Institute’s 2018 Annual Democracy Report.

Two days after President Morales’s declaration, Guatemala’s Constitutional Court ruled that his unilateral decision was unconstitutional. This was a step forward for the rule of law in Guatemala and it appeared that the justice system was pushing back against a closing space. Nevertheless, this positive momentum was short lived. Later that same day, Guatemala’s Supreme Court accepted a request from Congress to begin impeachment hearings against three Constitutional Court magistrates and to lift their immunity. The magistrates subject to that request are those who have consistently ruled in favor of CICIG. The impeachment proceedings are currently pending before Congress, and the ultimate decision on whether to lift the magistrates’ immunity and possibly remove them from the bench now lies with a Congress which is heavily aligned with President Morales.

In addition to President Morales’s unconstitutional unilateral decision to terminate CICIG’s mandate, another recent alarming indicator of rule of law backsliding is that Guatemala’s Congress is considering an amendment to its National Reconciliation Law which would grant amnesty to those convicted of serious human rights violations within 24 hours of the amendment’s ratification. This would result in the freeing of more than 30 convicts, most of whom are former military officers, and end any ongoing or future trials for crimes which occurred during Guatemala’s 30-year internal conflict.

Rule of law without CICIG?

CICIG, as a hybrid of international experts and authorities working with national criminal investigative institutions, has provided a mechanism for “accomplished and courageous leaders and prosecutors to emerge” in Guatemala’s attorney general’s office. The result was the prosecution of high-level government officials, including former presidents, ministers, and army officers, the breakup of over 60 criminal networks and 310 related convictions, fighting corruption throughout the judiciary and government, and strengthening the rule of law through programs, projects, and legislation. It is estimated that CICIG has contributed to a net reduction of more than 4,500 homicides from 2007 to 2017. CICIG thus brought Guatemala closer to achieving the targets of Sustainable Development Goal 16 (SDG 16) of the United Nations 2030 Agenda by: significantly reducing all forms of violence and related death rates (Target 16.1); promoting the rule of law at the national level and ensuring equal access to justice for all (Target 16.3); significantly reducing illicit financial and arms flows, strengthening the recovery and return of stolen assets, and combating all forms of organized crime (Target 16.4); and substantially reducing corruption and bribery (Target 16.5).

In ILAC’s recent report on the Guatemalan judiciary, we recommended to the government of Guatemala that in order to guarantee the rule of law for all persons (relating to SDG 16, Target 16.3) it must: support the independence of justice operators, including ensuring adequate resources are made available to the justice sector to ensure that it can perform its vital function, and guaranteeing the safety of justice operators, in particular judges in jurisdictions such as the High Risk Courts; confirm state support for the rule of law and the independence of the judiciary; and ensure that the state complies with court judgements and provides adequate resources for the enforcement of judgements, such as those by the Constitutional Court.

The continuance of Guatemala’s rule of law achievements and the support and oversight for implementing our recommendations, however, relied on CICIG’s existence.

Pushing back

Given the significant rule of law backsliding, is it possible to push back against the rapidly closing space for the justice system in Guatemala? First, it is important to note that Guatemala will hold presidential and congressional elections this summer. The elections, if conducted in a free and fair way, could bring about significant change to the current political climate. And, although the international community could not prevent an abrupt end to CICIG’s mandate, there is resistance to the closing space on the national level. Guatemalans have openly protested against the rule of law backsliding, and just last week Guatemala’s Attorney General opened an investigation into first lady Patricia Marroquin de Morales’s alleged cashing of unreported campaign checks made out to President Morales during his election bid.

This push back by civil society and justice sector actors on the national level against the closing space is hopefully a signal that the change brought about by CICIG’s work will have a lasting effect on the Guatemalan justice system. The international networks of judges, lawyers, and human rights organizations must support and encourage civil society and legal professionals in Guatemala and raise awareness of the dangers of the current rule of law backsliding. With such support, Guatemala’s civil society and the justice system’s actors and institutions can hopefully withstand the executive and legislature’s attacks on the rule of law.

ILAC was established in 2002, to facilitate cooperation by international and regional actors involved in rebuilding justice systems and the rule of law in conflict-affected countries. In 2017, ILAC selected a delegation of experts from candidates put forward by its 50+ member organisations to carry out an assessment of the justice sector in Guatemala. The delegation traveled to Guatemala in October 2017, meeting with over 150 Guatemalans, including judges, prosecutors, lawyers, human rights defenders and business leaders. Follow the latest ILAC news at www.ilacnet.org and on Twitter @ILAC_Rebuild.

ILAC launches report of Guatemalan justice sector and calls to extend CICIG’s mandate

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.

In light of this recommendation, it is also worth noting that CICIG currently enjoys widespread public support in Guatemala and, according to a recent report by the International Crisis Group, “is a rare example of a successful international effort to strengthen a country’s judicial system and policing.”

ILAC joins call to extend 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.

In a future post we will elaborate upon how the current situation in Guatemala reflects the challenges and opportunities for promoting justice globally in the context of the United Nations 2030 Agenda for Sustainable Development, and particularly SDG 16.

To learn more, you can read the report press release here.

You can follow ILAC on Twitter here

CORRUPTION CRISIS OVERTAKES GUATEMALA

A new president takes office with no government experience and a background as a TV personality. He comes to the job after squaring off against a woman candidate, who he accuses of corruption. He promises that things will be different, but he can’t get much done. He’s forced to rely on a small group of retired military officers, some of them with shady pasts. Worse, information starts emerging about his party’s illegal campaign finance schemes, and an independent investigation turns up evidence of wrongdoing. To avoid further scrutiny, the president tries to get rid of the investigator, but runs into political resistance. A constitutional crisis ensues.

 

Sound familiar? Welcome to Guatemala.

 

The president is Jimmy Morales, former comedian, who on August 27 declared persona non grata the head of the U.N. Commission Against Impunity in Guatemala, Colombian jurist Ivan Velásquez. The Commission, known by its Spanish initials as CICIG, was created in 2006 through an innovative agreement between the United Nations and the Guatemalan government in order to deal with clandestine groups that had infiltrated the state and were attacking human rights defenders and others. In 2014, the U.N. appointed Velásquez to the post, and he helped shift CICIG’s priorities to the endemic, large-scale corruption that has sapped the country’s resources and allowed for strategic alliances among government and military officials, economic elites and organized crime. CICIG cannot prosecute, but acts as a civil party in cases brought by the local Prosecutors’ office.

Continue reading

Pamela Yates’ new Guatemala film “500 Years” to screen at our 10th Birthday Conference

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A very special film event will open IntLawGrrls! 10th Birthday Conference, the global gathering we’re hosting this spring.

On the evening of Thursday, March 2, 2017, the conference will begin with a screening of “500 Years,” a documentary about Guatemala. This Athens, Georgia, screening – taking place just weeks after the film’s premiere at the 2017 Sundance Festival – will feature a conversation with its award-winning director, Pamela Yates (below), and producer, Paco de Onís. Yates, who describes herself as “an American filmmaker and human rights defender,” has posted on her work at IntLawGrrls (see here and here), which is celebrating a decade as the pre-eminent international law blog written primarily by women.

yates_pamela“500 Years” concludes a Guatemala trilogy begun with “When the Mountains Tremble” (1983) and “Granito: How to Nail a Dictator” (2011), As described at the Skylight Pictures website:

“From a historic genocide trial to the overthrow of a president, ‘500 Years’ tells a sweeping story of mounting resistance played out in Guatemala’s recent history, through the actions and perspectives of the majority indigenous Mayan population, who now stand poised to reimagine their society.”

On Friday, March 3, 2017, IntLawGrrls! 10th Birthday Conference will continue with the daylong Research Forum at the University of Georgia School of Law Dean Rusk International Law Center.  As introduced in prior posts, this Forum will feature presentations by international law academics, practitioners, and policymakers, plus a plenary panel on “strategies to promote women’s participation in shaping international law and policy amid the global emergence of antiglobalism.”

This IntLawGrrls event is part of the law school’s Georgia Women in Law Lead (Georgia WILL) initiative and of the Global Georgia Initiative of the university’s Willson Center for Humanities and Arts. Additional conference cosponsors include Georgia Law’s Women Law Students Association and International Law Society, the American Society of International Law and ASIL’s Women in International Law Interest Group, and the Planethood Foundation.

Details on the conference are at the webpage containing the call for papers (deadline January 1, 2017).

(credit for Skylight Pictures’ photo above, by Daniel Hernández-Salazar; source for photo of Yates)

CICIG’s investigations show web of corruption in Guatemalan state. Now, what’s next?

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

Go On! Free screening of ‘Granito: How to Nail a Dictator’ at Cardozo Law, March 24

Next Tuesday, March 24, from 6-8pm, the Cardozo Law Institute in Holocaust and Human Rights (CLIHHR), Latin American Law Students Association (LALSA), and Cardozo Students for Human Rights will present a free screening of the film Granito: How to Nail a Dictator, followed by a conversation with Peter Kinoy, Editorial Director of Skylight.

In 1982, Guatemala was engulfed in an armed conflict during which a genocidal “scorched earth” campaign by the military killed nearly 200,000 Maya people including 45,000 disappeared. Granito tells the extraordinary story of how a film became a “granito” – a tiny grain of sand – that helped tip the scales of justice.

The event, which is free and open to the public, takes place at Cardozo School of Law – 55 Fifth Avenue NY, NY 10003, Room 206. Light dinner will be served.

To attend, please RSVP to cardozo.clihhr@yu.edu.

Murder of Rigoberta Menchu’s Father Tried in Guatemalan Court

On January 31, 1980, police firebombed the Spanish Embassy in Guatemala, killing 37 people, among them embassy personnel and protesters. One of those killed was Vicente Menchu, a community activist and the father of Rigoberta Menchu, who would go on to win the Nobel Peace Prize for her advocacy on behalf of indigenous peoples.

Thirty four years later, Rigoberta sat before a panel of judges in a Guatemalan courtroom, describing the events of that day and the effect they had on her and her family. Rigoberta Menchu - image from La PrensaRigoberta Menchu testifies - photo by Walter Pena.

Trial started yesterday in the case of the Embassy bombing. The defendant, Pedro Garcia Arredondo, is already in prison for the disappearance of a student leader. At the time Garcia Arredondo was the head of the police unit that ordered the firebombing. According to the prosecutor, he ordered that no one be allowed to escape the resulting fire.

This trial is notable for several reasons. First, because of the significance of the event, which was largely seen as the opening salvo in what became a genocidal campaign against the indigenous peoples of the country’s northwest. Vicente Menchu and his fellow protesters had occupied the Spanish Embassy, hoping to enlist the ambassador in making their concerns about army repression in the area known. The brutal response set the stage for an escalation of attacks on protesters and communities. Thus, in one sense the trial is a follow-up to last year’s genocide trial of former president Rios Montt and his intelligence chief, albeit focused on the predecessor regime of Romeo Lucas. It is one of the “emblematic cases” of the conflict.

Second, the international ramifications are significant. The Spanish ambassador had specifically called on the police to desist, and when the fire started, had escaped by jumping out the window. (The ambassador, Maximo Cajal, died earlier this year, but gave a sworn video statement to prosecutors that will be used in the trial). Spain broke diplomatic relations with Guatemala for many years over the incident, and the Spanish ambassador is now sitting up front at the trial. A Spanish judge has been investigating this case and others since 2006.

Third, some of the evidence comes from the national police Archives, discovered in 2005 in an abandoned police station. The archives, which are in the process of being digitized by researchers, according to the prosecutors’ office contain reports of the police action, linking Garcia Arredondo and others to the decision to burn people alive.

Finally, this is the first major trial of the human rights-related crimes committed during the 1980s since the departure of the former Attorney General, Claudia Paz y Paz. former Attorney General Claudia Paz y Paz

It may be intended to show that the current attorney general, known for her close links to the ruling party, intends to continue at least some prosecutions in this area, something that is important to the country’s international image. This prosecution, in that sense, is less politically charged, because it concerns the discredited Lucas regime, and doesn’t touch still-powerful figures close to the current government. Another investigation of a figure from that era, former Army Chief of Staff Benedicto Lucas (brother of the former president) is reportedly underway.