Chapter 2 The Development of the International Commission against Impunity in
2.3 The Creation of the CICIG
On the one hand, large parts of the demobilized army in Guatemala became part of Colombian and Mexican criminal organizations. In the other, corrupt officials provided the infrastructure needed to build a network of logistics for smugglers and money laundry.
The consolidation of all these criminal networks and the label of illegal Clandestine Security Apparatuses (Cuerpos Ilegales y Aparatos Clandestinos de Seguridad CIACS) was given at the same time the regional drug trafficking was fully established. Currently, CIACS are responsible for multiple crimes; arms trafficking, drug trade, black-market adoptions, money laundry, and extortion (Nyberg 2015)
Consequently, CIACS are using to understand the relationship between the related deterioration of the Guatemalan State and corrupt law enforcement institutions (Postema 2016). The peace agreements identified and included a section for the restructure and reformation of those state-agencies. The treaties did not address the dynamics of power between economic elites, the Guatemalan army, and CIACS (Gutierrez 2016). As a result, the contemporary history of Guatemala has vast information about CIACS operations and modus operandi. Thus, these actors continue to ensure impunity and intricate inside the roots of public institutions (Postema 2016 ).
2.3 The Creation of the CICIG
Guatemala has been depicted as a failing state, where the government has been unable to adequately provide essential services for the population because criminal groups operate and parasite the state institutions (Briscoe and Pellecer 2010, 38). Security and justice are among the many problems that civilians face daily in this country (Hampson 1995). As a result, high distrust among citizens toward the political elite grows year by year (Park 2003).
However, even though Guatemala suffers from various issues of poor governance (e.g., high crime rates), many civil society organizations work hand-in-hand with the international community to make the country a better place. In particular, there had been several efforts made to reduce corruption. The first remarkable effort was formed in 2003 when the Alfonso Portillo administration openly recognized that the judicial system is too weak to tackle
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organized crime within state institutions, and later the government requested the intervention of the Department for Political Affairs of the United Nations to investigate and enforce the laws for groups that involving political corruption (Luiña et al. 2014).
After intense negotiation with the UN, an agreement draft was made on January 7, 2004, to create the International Commission to Investigate Illegal Groups and Clandestine Security Forces (Comisión de Investigación de Cuerpos Ilegales y de Aparatos Clandestinos de Seguridad, CICIACS). The so-called “illegal groups and clandestine security forces”
(CIACS) are criminal units that have been operated as an illicit or collaterally illicit network.
The groups can exert influence by corruption, infiltration, or co-optation of decision-making processes through their informal members within the state apparatus (CICIG 2007). More broadly, these groups were part of an intricate criminal network operating since the post-war, almost without any punishment or prosecution. They enjoyed significant benefits sponsored by the cover of the national security forces, functionaries in public institutions, or even Congress members (Lopez 2010; Luiña et al. 2014).
In 2004, Oscar Berger won the presidential election due to its successful campaign platform for promoting a strong agenda against corruption and organized crime and impunity.
Unfortunately, homicides rates increased significantly during Berger’s term. On December 12, 2006, the United Nations and Guatemala signed an agreement to create International Commission against impunity in Guatemala (CICIG), and the Congress made the final ratification on August 01, 2007 (CICIG 2008).
Strong support of the international community was essential for creating the CICIG. Different countries, including the United States, provided the commission an annual budget of $15-20 million(OSJI 2016, 8).In the first report, the CICIG describes itself as an independent organization from the political and financial aspects (CICIG 2008). The constitution of this commission is one of its kind by 2008, nor the United Nations or any other international organizations had registered any similar document designated for the promotion of law enforcement (CICIG 2008). The new experience with prosecutorial mission represented bureaucratic challenges for both CICIG and the UN (OSJI 2016).
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CICIG manages to operate with high efficiency and effectivity in its administrative procedures. This represented an advantage, especially during the initial organizational and recruitment processes. However, the installation of this anti-corruption agency also faced several challenges at the national level. An evident debate emerged between the pro-status-quo groups and the reformist group (Brannum 2019). The nationalists, evangelical networks, and military (Althoff 2019) argue that the CICIG would undermine the country’s sovereignty (Maihold 2016). Other opponents contended that the government transferred its capacities and duties to an external actor (Valladares 2010). Not surprisingly, this argument was widely used by those who were later investigated and prosecuted by the CICIG (Brannum, 2019).
Since its establishment, the CICIG aimed to pursue three primary objectives. First, the CICIG investigated and identified illegal groups in or out of the state. Second, the CICIG cooperated with the Guatemalan government to tackle illegal bodies or clandestine security groups, activities, and financial sources, and these cooperative actions included. Investigations, legal prosecution, and the punishment of members of this organization. Third, the CICIG made recommendations to the Guatemala government for the adopting policies and institutional reforms for eradicating clandestine apparatuses and illegal security forces and preventing their reappearance.
In practice, the CICIG mandate serves as a guideline to justify the investigatory work related to the protection of human rights in Guatemala (OSJI 2016). The CICIG’s initial work was mainly focused on tracking illegal groups and clandestine security forces (CIACS).
Beginning from 2010, CICIG started to work on tracking money laundry actions, fraud, and other crimes related to impunity (CICIG 2016).
Article 6 of the “Agreement between the United Nations and the State of Guatemala on the establishment of an International Commission Against Impunity in Guatemala” stipulates 1 important powers for this organization, including:
“(a) freedom of movement without restriction throughout Guatemalan territory;
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(b) freedom of access without restriction to all State locations, establishments and installations, both civilian and military, as well as to all penitentiaries and detention facilities without prior notice, in accordance with and subject to the relevant provisions of Guatemalan Constitution;
(c) freedom to meet and interview any individual or group of individuals, including State officials, military and police personnel, community leaders, non-governmental organizations, private institutions and any persons whose testimony is deemed necessary for the discharge of its mandate;
(d) free access to information and documentary material that has a bearing on its investigations, official archives, databases and public records and any similar report, file, document or information in possession of the relevant persons or entities, whether civilian or military, in accordance with and subject to the applicable provisions of the Guatemalan Constitution.”
The CICIG had experienced five propagations before it was terminated in 2019. The five propagations were necessary for the CICIG to build investigations, identify criminal activity, and structure institutional reforms. The first propagation took place on March 24, 2009, the second on December 23, 2010, the third propagation took place between September 4, 2013 and September 3, 2015, the fourth took place between September 4, 2015, and September 3, 2017. Requested by the then-president Jimmy Morales to the UN, a final propagation took place from September 04, 2017, to September 03, 2019.
Overall, the CICIG experience suggests that the capacity building, investigations development, and prosecution require long periods of preparation. The two-year term of each propagation constrained the CICIG to act on specific cases (OSJI 2016). Thus, it was not surprising that those linking with political-criminal networks used the propagation opportunity to detract (Brannum, 2019).
Before 2019 CICIG’s last propagation period, the anti-corruption agency had three different commissioners. According to Article 3 of the “Agreement between the United Nations and the State of Guatemala on the establishment of an International Commission Against Impunity in Guatemala,” the main roles of the commissioners include: 2
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“(a) Collect, evaluate and classify information provided by any person, official or private entity, non-governmental organization, international organization, and other states;
(b) Promote criminal prosecutions by filing criminal complaints with the relevant authorities. The commission may also follow the Agreement and the Code of Criminal Procedure and join a criminal proceeding as a private prosecutor ( querellante adhesivo) concerning all cases within its jurisdiction;
(c) Provide technical advice to the relevant state institutions in the investigation and criminal prosecution of crimes committed by presumed members of illegal groups and clandestine organizations, and advise state institutions in the implementation of administrative procedures that might be required against state officials allegedly involved in such organizations;
(d) Report to the relevant administrative authorities the names of civil servants who in the exercise of their duties have allegedly committed administrative offenses so that the proper administrative proceedings may be initiated, especially those civil servants or public employees accused of interfering with the commission’s exercise of its functions or powers, without prejudice to any criminal proceedings that may be instituted through the Office of the Public Prosecutor;
(e) Act as an interested third party in the administrative disciplinary proceedings referred to above;
(f) Establish and implement cooperation agreements with the Office of the Public Prosecutor, the Supreme Court, the Office of the Human Rights Ombudsman, the National Civilian Police and any other state institutions to carry out its mandate;
(g) Guarantee confidentiality to those who assist the commission in discharging its functions, whether as witnesses, victims, experts or collaborators;
(h) Request, under the terms of its mandate, statements, documents, reports, and cooperation in general from any official or administrative authority of the state and any decentralized autonomous or semi-autonomous state entity, and such officials or authorities are obligated to comply with such request without delay;
(i) Request the Office of the Public Prosecutor and the government to adopt measures necessary to ensure the safety of witnesses, victims and all those who assist in its investigations, offer its good offices and advice to the relevant State authorities for the adoption of such measures, and monitor their implementation;
(j) Request and supervise an investigation team made up of national and foreign professionals of proven competence and moral integrity, as well as such administrative staff is required to accomplish its tasks;
(k) Take all such measures it may deem necessary for the discharge of its mandate, subject to and following the provisions of the Guatemalan Constitution;
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(l) Publish general and thematic reports on its activities and the result thereof, including recommendations under its mandate.”
To operate effectively CICIG create inter-institutional agreements with the Guatemalan government agencies, particularly the public prosecutor's office, for performing functions such as investigations, criminal prosecution, technical assistance, and institutional coordination. These inter-institutional agreements aimed to help track and dismantle illegal security groups and clandestine security organizations.
Under the first commissioner Carlos Castresana, the first eight inter-institutional cooperation agreements were signed. One important agreement is the agreement with the Superintendency of Banks (SIB-CICIG), which was related to administrative offenses (CICIG, 2007). The most agreement between the Public Attorney Office and the CICIG (MP-CICIG), which was seen as the most important inter-institutional agreement, was signed on February 29, 2008.
The MP-CICIG aimed to tackle illegal security groups and clandestine security organizations.
Moreover, this agreement established the figure of Third-Party Prosecutor, or querellante adhesivo. According to the agreement, the Third-Party Prosecutor “may exercise criminal prosecution or adhere to that initiated by the Public Ministry in the case of crimes allegedly committed by members of those criminal structures that are the object of the commission’s mandate (CICIG 2020).
On March 6, 2008, a three-institution agreement was signed to facilitate investigations related to violence and crimes against women. The nature of this agreement was the cooperation between the Secretary of Social Works of the President's Wife, Ombudsman for Indigenous Women, Woman Presidential Secretary, and the CICIG (SOSEP-DEMI-SEPREM-CICIG) (CICIG 2008).
On March 25, 2008, an agreement between the CICIG and the Ministry of the Interior was signed (MINIGOB-CICIG) to promote cooperation of the CICIG and the National Civil Police for identifying illegal security groups and clandestine security organizations. To persecute money laundry and crimes related to taxation and customs fraud, crimes or offenses
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against the tax administration, CICIG signed an agreement with Superintendency of Tax Administration (SAT-CICIG) on July 2, 2008 (CICIG 2008).
Under Castresana term as a commissioner, the CICIG also developed three different inter-institutional cooperation agreements with institutions that belonged to the UN. Two of those agreements were signed in 2009. The first is the UNIFEM-CICIG agreement, which aimed to persecute impunity related to violence against women, signed by the CICIG and the United Nations Development Fund for Women.. The second is the UNICEF-CICIG, which aimed to persecute impunity with crimes related to children, signed by the CICIG and the United Nations Children's Fund. A third inter-institutional agreement was signed in 2010 with the United Nations Office on drugs and Crime (UNODC-CICIG) to fight against drug crime and terrorism (CICIG 2009).
Under the commissioner Francisco Dall ,two relevant domestic agreements related to the Third-party prosecutor or querellante adhesivo were signed. The first was signed in 2011 with the National Accounts Controller (CGC-CICIG), and the second was signed in 2013 between the CICIG and the General Attorney and General Register of Property (MP-RGP-CICIG) (CICIG 2013). The last commissioner, Ivan Velasquéz, appeared to decrease the activity related to the promotion of inter-institutional cooperation agreements of the CICIG. Still, Velasquez signed an agreement with the Supreme Electoral Court in 2018 to advance an electoral reform (CICIG 2018).