Prosecuting the President - Lessons from Guatemala’s CICIG

University of Amsterdam

Guatemala made headlines worldwide last year when its president and vice-president were forced to resign after months of street-protests against government corruption. That corruption is widespread in Guatemala is nothing new. What was new last year was the fact that there was compelling evidence – including telephone taps – to prove the direct involvement of the president and the vice-president. The evidence was produced thanks to CICIG, the International Commission Against Impunity in Guatemala. High-level state crime is of growing concern across the globe, making the success of the CICIG all the more relevant internationally.

Alejandro Rodriguez (Impunity Watch, formerly Public Ministry Guatemala) explained the creation of CICIG in 2007 and its development over the past years. CICIG is a unique innovative mechanism. International staff can act as co-prosecutors and investigators in high-profile cases, whilst Guatemalan judges apply Guatemalan law. The Commission is also mandated to propose legislative reform and to denounce corruption in the judiciary. The commission is fully embedded within the national legal system – no international jurisdiction is created – yet within the domestic order the international commission has unprecedentedly far-reaching powers.

An international commission to identify and dismantle clandestine security structures within the Guatemalan state had long been called for by Guatemalan civil society actors. The Guatemalan government was not particularly eager however to allow the creation of an international commission to watch its back. Its creation finally came about as a result of a crisis in Guatemala, when three Salvadoran parliamentarians and their driver were found dead in Guatemala; four police officers were arrested for their alleged involvement in the killings; and those police officers were murdered in prison.

CICIG’s results include the removal of a corrupt Attorney General on two occasions; the creation of special vetted High Risk Courts; the creation of wiretapping and other investigative capabilities within the Public Prosecutor’s Office; reform of the Criminal and Criminal Procedure Codes; the introduction of a new Anti-Corruption Law; and the dismantling of numerous organized crime groups.

CICIG has had rough moments. For example in 2013, president Otto Pérez Molina announced that in his view the work of the Commission had been completed and that he would not seek mandate renewal. But the cards changed and Pérez Molina is now in jail while CICIG has become the most trusted institution in Guatemala. The US State Department considers the 37 millions USD invested by the United States so far in the Commission’s work to be its best spent money in terms of impact.

Rodríguez identified three lessons learned by CICIG’s experience, with a view towards potential replication in other countries. First, when creating a commission like CICIG, it is crucial to recognize the fact that the commission is not only up against vilified thugs and criminals, but actually has to confront the economic and social elites of the country and officials within the state. Clear knowledge of the political map, including potential allies and priority targets, is required. Second, that reform takes time. The 2-year mandate that CICIG received in 2007 (subsequently renewed in 2009, 2011, 2013 and 2015) is wholly insufficient and renders the commission vulnerable to political pressure. The minimum mandate should be 5 years. Third, CICIG should be an official United Nations organization rather than a sui generis body created by treaty between the UN and the host state. Better integration within the UN system is required.

Another major concern with regard to CICIG is the question: when will its work be completed? What sustainable capacities will have been put in place when the Commission leaves? At some point, CICIG will have to leave Guatemala. A sound strategy towards completion of the mandate is required. Current president Jimmy Morales requested the United Nations last week to extend the mandate of CICIG until September 2019. This is a great development, giving the Commission a horizon longer than two years for the first time. It is unclear whether the Commission will have finalized its work in September 2019 – after twelve years – or whether a further extension will be requested.

The political circumstances and the political influence of CICIG must also be considered. It was probably the context of the unaccompanied minors migration crisis in the United States, and the approval of a one billion USD assistance program for the Northern Triangle, that made the US push for CICIG’s continuation. It is important to realize that the creation and success of commissions like CICIG is dependent on such circumstances. There is also a risk of political misuse of the Commission’s capacities. For example in Brazil, the publication of telephone taps has led to controversy. In a polarized context like Guatemala’s, the risk of judicial powers being politicized is substantial. Finally, the political consequences are not unambiguous. As a result of CICIG’s denouncing government corruption, apparent outsider Jimmy Morales got elected president. Whether the political consequences are ultimately beneficial to Guatemala remains to be seen.

Notwithstanding the concerns and the imperfections of CICIG, it can be concluded that CICIG has had a fundamental and positive impact. Of all the many international cooperation mechanisms that have been tried upon Guatemala, CICIG is the first one to be really effective. Ultimately, through the creation of institutional capacity and through the dismantling of parallel structures within the state, the culture of impunity is undergoing change. Impunity is no longer accepted as the ordinary situation; the public demands change. Although it takes a lot of time, and although some of the gains made by CICIG are not yet irreversible, the impact on the culture of impunity in Guatemala is already being felt. The international community should continue to back CICIG, and should study the lessons learned when considering replication of the model in other countries. 

This blog was inspired by the Platform's 4th Annual Conference, and in particular related to the breakout session on "new ways to tackle state crime: lessons from Guatemala". This session was organized by Impunity Watch and the Conflict Research Unit of Clingendael in collaboration with guest experts Alejandro Rodriquez (Guatemalan Lawyer and expert on the CICIG), Daniel Saxon (Assistant Professor, Leiden University) & Ivan Briscoe (Senior Research Fellow, Conflict Research Unit of Clingendael Institute). The session was facilitated by Marlies Stappers (Executive Director - Impunity Watch). Keep an eye on our website (#srolconf #hardchoices) for the main outcomes from the conference.

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