Thursday, June 02, 2011

Guatemala: Learning to Walk without a Crutch - The International Commission Against Impunity in Guatemala

Source: International Crisis Group

Since it began operations in September 2007, the International Commission Against Impunity in Guatemala (Comisión Internacional contra la Impunidad en Guatemala, CICIG) has brought a degree of hope to a country deeply scarred by post-conflict violence and entrenched impunity. As homicide rates sky-rocketed to rival Mexico’s, and criminals fought for territorial control and dominated or corrupted multiple levels of state agencies, the novel independent investigating entity created by agreement between the government and the UN Secretary-General responded to fear that illegal armed groups had become a threat to the state itself. Much remains to be done, however. During the next years the commission should establish the strategic basis for dismantling the illegal security forces and clandestine security organisations (Cuerpos Ile­ga­les y Aparatos Clandestinos de Seguridad, CIACS) over the long term and building Guatemalan justice capacity, including by supporting national ownership of the commission’s functions and embedding them within the judicial system.

CICIG’s formal mandate is to support and assist domestic justice institutions in the investigation and prosecution of crimes committed by CIACS, to identify their structures, operations and financing and ultimately to dismantle them. At the same time, CICIG has sought to strengthen the weak judicial system in order to put an end to impunity, a task made infinitely more difficult by the complex relationship between elements of state institutions, political parties, the private sector and the CIACS.

On 13 January 2011, Secretary-General Ban Ki-moon confirmed a second two-year extension of CICIG’s original mandate, to 4 September 2013. The commission has achieved notable and unprecedented short-term successes, evidenced by positive outcomes in a series of high-impact legal cases, dismissal and prosecution of several senior officials, removal of a compromised attorney general and the selection of a respected successor. It has encouraged the adoption of norms for election of Supreme Court judges and helped generate public awareness about impunity, CIACS and organised crime. It contributed directly to the creation of a Special Prosecutor’s Office that assists its work (Unidad Especial de la Fiscalía de Apoyo a la CICIG, UEFAC) and has supported greater professionalism in the Public Prosecutor’s Office (Ministerio Público, MP), the institution charged with the investigation and prosecution of crimes in Guatemala. It has also pushed through a limited number of important legal reforms.

However, the core elements of the mandate – dismantling the CIACS and consolidating sustainable institutional transformation – remain unmet, and it is uncertain whether sufficient progress has been achieved or at least the foundations have been laid to guarantee those goals will be accomplished. Severe structural constraints and the resistance of diverse spoilers, as well as limitations imposed by the commission’s own mandate and strategies, have been restraining factors. Such institutional transformation as there has been will remain isolated exceptions, unless further legislative reforms are adopted to extend them throughout state institutions.

Moreover, there is a serious question about the degree to which the Guatemalan state and broader society are prepared to exercise ownership of CICIG and sustain its achievements. Clear measures need to be taken to reduce the possibility that continuation of the mandate will only make the justice system more dependent on external mechanisms. National ownership of the commission’s functions and objectives is crucial to guaranteeing its long-term impact. Assuring a sustainable legacy through the transfer of technical capacities from CICIG to national institutions should be a priority during the next two years. CICIG has provided a crutch. The justice system must now learn to walk on its own and increasingly assume the responsibilities with which CICIG has been charged.


For creation of effective, professional and well-resourced national rule of law institutions

To the Government of Guatemala:

1. Support CICIG’s mandate through the strengthening of a well-funded and trained rule of law sector, including by:

a) enforcing and supporting, as appropriate, the removal of tainted officials from key rule of law institutions, such as the Public Prosecutor’s Office, the judiciary and the National Civil Police, applying administrative and disciplinary measures where appropriate and prosecuting, where possible, any officials linked to CIACS;

b) strengthening financially and technically the units of the Public Prosecutor’s Office (MP) and the National Civil Police mandated with identifying and prosecuting those linked to or participating in the CIACS, including through the establishment of an independent criminal investigation unit within the MP, as well as other institutions, such as the criminal defence system and the judiciary;

c) establishing an adequate career system for the public service in general and the police and MP in particular, and ensuring dignified salaries and benefits; and

d) obtaining passage of key legislation proposed by CICIG, such as the reform of the Statutory Law of the Public Prosecutor’s Office and an enhanced fiscal regulation.

2. Reviving and implementing the National Agreement for the Advancement of Security and Justice signed in April 2009 as an element of the roadmap for judicial reform processes.

To the Congress of Guatemala:

3. Prioritise passage of key legislation proposed by CICIG, including reforms to the Statutory Law of the Public Prosecutor’s Office, ensuring an independent, transparent selection mechanism for the office of Attorney General; the Law on Injunction (Amparo), Habeas Corpus and Unconstitutionality; the Law on Immunity of Public Officials; the Immigration Law, with specific reference to human trafficking, including illicit trafficking of migrants; and laws related to disciplinary measures in the justice system and pleas in criminal proceedings.

To the Attorney General:

4. Improve the MP’s capacity to detect prosecutors and other staff linked with CIACS by establishing an effective, independent internal affairs unit, in close coordination with the UEFAC, and improve its human resources policies by creating an adequate system of benefits and protection.

To the International Community:

5. Present common conditions to the government for future cooperation, including adoption of a national agenda for the justice system and fiscal reform and retention by the president elected in September 2011 of Attorney General Claudia Paz y Paz, at least through the critical two-year period of CICIG’s mandate.

For strengthening the work of CICIG

To the International Commission Against Impunity in Guatemala (CICIG):

6. Consolidate CICIG’s achievements in specific cases, expand its intervention in institutional reform to combat impunity and build capacity, including by:

a) focusing its prosecutorial activity on dismantling the CIACS as its first strategic priority publicly and clarifying its criteria for case selection and its general plan of investigations over the next two years;

b) mapping out CIACS structures, locations and activities and sharing the information with the attorney general; and

c) expanding its intervention in the interior so as to confront CIACS at local and regional levels.

7. Evaluate CICIG’s activities, impact and strategy together with Guatemalan stakeholders, including civil society organisations and public institutions, and independent international experts.

To the International Community:

8. Maintain and strengthen coordinated donor support to CICIG by:

a) ensuring it has all required financial and technical resources, including a fully funded two-year budget; and

b) backing the evaluation of CICIG, its achievements and limitations, with pertinent indicators and in constant dialogue with all stakeholders, including Guatemalan public institutions and civil society organisations.

For coherently transferring capacities from CICIG to national institutions

To the Government of Guatemala:

9. Establish a high-level commission, under the president’s authority and with the participation of public institutions, CICIG and civil society representatives, to establish a transfer strategy, including a budget, institutional mechanisms, benchmarks and timelines.

To the Congress of Guatemala:

10. Pass fiscal reform and complementary legislation to guarantee an adequate budget for the public sector.

To the Attorney General:

11. Use the UEFAC as a seedbed to build and transfer capacities within the MP, including by enhancing its role and authority and requiring all MP units, such as the Special Unit for Crimes against Life, to collaborate with it when requested and immediately disciplining those that do not.

12. Establish and follow a roadmap for transferring CICIG information, resources and techniques, including by:

a) building an efficient, transparent information system that protects sensitive data on CICIG investigations; and

b) expanding the prosecutorial activities of all appropriate MP units, in collaboration with CICIG and UEFAC.

To the International Commission Against Impunity in Guatemala (CICIG):

13. Establish and pursue a proactive strategic plan to transfer knowledge and capacities to Guatemalan public institutions, including working together on establishing a model for selecting and investigating high-impact cases and appointing UEFAC personnel.

To The International Community:

14. Reinforce donor coordination on the long-term funding priorities of national justice institutions and in particular monitor the strategic plan to transfer CICIG capacities to them.

Guatemala City/Bogotá/Brussels