Mr. Karim A. A. Khan KC
Office of the Prosecutor
International Criminal Court
Oude Waalsdorperweg 10
The Hague, The Netherlands
We, the undersigned, represent a diverse coalition of international, and regional organizations, dedicated to fostering the consolidation of the rule of law in Guatemala. Central to our collective mission is the diligent monitoring and meticulous documentation of threats and violations of international legal norms. Our scope encompasses a wide array of concerns, including the overall effectiveness of the justice system, the preservation of judicial and prosecutorial independence, the advancement of anti-corruption endeavors, the protection of press freedom, and the promotion of a vibrant civic space, among other crucial areas.
We understand that the ICC, in particular the OTP, requires full cooperation from States Parties to the Rome Statute to function effectively. In that regard, securing cooperation agreements with national authorities is not only important but also vital for the Court’s functions. We understand that your mission to Guatemala was carried out with that purpose. Notwithstanding, we note with serious concern your remarks and tweets around your visit to Guatemala on May 13, 2023, regarding Guatemala’s commitment to human rights and the Rule of Law, in times where there are grave ongoing attacks on current and former judges and prosecutors tasked with investigating serious human rights violations and grand corruption, which has resulted in over 28 of them forced to leave the country as a result of this persecution. In addition, your remarks were made at an event where there was a noticeable lack of participation from civil society.
In this regard, we take the opportunity of this visit to respectfully bring to your immediate attention the grave and critical situation unfolding in Guatemala. At its core lies the alarming criminalization of judges and prosecutors and the takeover of judicial institutions by actors engaged in corrupt practices and human rights violations. Regrettably, in the last few years, the foundations of the rule of law and the protection of human rights have seriously deteriorated.
Guatemala has long struggled with corruption and a lack of judicial independence. However, in recent years, the situation has deteriorated significantly. Members of government and Congress, the Attorney General, and private actors have and continue to carry out a systematic campaign to undermine judicial independence and silence those who seek to uphold justice. This campaign includes baseless accusations, threats, and fabricated charges against judges and prosecutors who have dared to contribute to the fight against impunity. The targeted individuals are unmistakably singled out for their pivotal roles as high-risk judges presiding over the gravest crimes, as prosecutors from the Prosecutor’s Specialized Office against Impunity (FECI), or as officers who served in the now-extinct International Commission against Impunity in Guatemala (CICIG), established with the support of the United Nations.
As part of these institutions, the targeted individuals exposed, investigated, and prosecuted powerful political actors, businessmen, and judiciary members for corruption and former members of the military and police forces for grave violations of human rights during the armed conflict. For instance, according to Chapter IV.B of the Annual Human Rights Report by the Inter-American Commission on Human Rights, Judge Erika Aifán was forced into exile after more than 100 false complaints and unfounded criminal judicial proceedings were launched against her for her work in large-scale corruption cases involving members of the government, the private sector, and the judiciary. This situation was covered in detail by reliable media outlets such as The New Yorker, The New York Review of Books, the Washington Post, and El País from Spain. Judge Aifán has received several international honors for her dedication to judicial independence and ending impunity, including the U.S. State Department 2021 International Women of Courage Award. In addition, Judges Miguel Angel Galvez, Pablo Xitumul, and Yasmin Barrios have been persecuted for their work as judges adjudicating cases that involve former members of the military and police for violations of human rights and other serious international crimes such as systematic sexual abuse and genocide. To protect their safety and security, each of these judges benefits from precautionary measures by the Inter-American Commission on Human Rights. Judge Gálvez, for example, was forced into exile through baseless criminal proceedings against him for his decision to send nine former military members to trial in the Diario Militar case.
These attacks on judicial officers violate the principles of fairness and impartiality and undermine the very foundation of Guatemala’s democracy. The independence of the judiciary is a cornerstone of any democratic society, ensuring equal protection under the law and upholding human rights. The government’s recent actions threaten to dismantle this essential pillar, causing irreparable damage to Guatemala’s legal system and the fundamental rights of its citizens.
The persecution, harassment, and criminalization of judges and prosecutors has been condemned multiple times by the United Nations Special Rapporteur for the Independence of Judges and Lawyers, the UN High Commissioner on Human Rights, and the Inter-American Commission on Human Rights. The latter included Guatemala in 2021 and 2022 in Chapter IV.B of its Annual Human Rights Report as a State that requires special attention for its human rights situation, asserting its concern for the increasing criminalization and stigmatization of judges and prosecutors due to the misuse of criminal law by the Office of the Attorney General. Moreover, foreign governments such as the European Union and the United States have repeatedly expressed their concerns about the implications of these serious acts on democracy and the rule of law. The Department of State of the United States included Attorney General Consuelo Porras, the current Special Prosecutor Against Impunity (FECI) Jose Rafael Curruchiche Cucul, among others, on the list of anti-democratic and corrupt actors under Section 353 of the United States-Northern Triangle Reinforced Commitment Act due to acts of interference in the investigation of corrupt practices. Other actors, such as members of organizations that obstruct judicial proceedings against former military members like Ricardo Méndez and Raúl Falla from the Fundación contra el Terrorismo were also included in the State Department’s list. Porras was subsequently excluded from the possibility to enter the United States pursuant to section 7031(c) of the Department of State, Foreign Operations, and Related Programs Approvals Act of 2022. The press release on the matter stated that:
“The United States is designating Attorney General of Guatemala Maria Consuelo Porras Argueta de Porres (“Porras”) due to her involvement in significant corruption. During her tenure, Porras repeatedly obstructed and undermined anti-corruption investigations in Guatemala to protect her political allies and gain undue political favor. Porras’s pattern of obstruction includes reportedly ordering prosecutors in Guatemala’s Public Ministry to ignore cases based on political considerations and firing prosecutors who investigate cases involving acts of corruption.”
This situation has also been widely documented in different reports issued by international organizations and civil society groups. A recent Vance Center report contains detailed information on the patterns that characterize this persecution, including the tactics and strategies used to harass judges, prosecutors, and lawyers to the point of exile or imminent arbitrary incarceration. More than 28 judicial officers are now in exile, while anti-corruption prosecutor Virginia Laparra was convicted and sentenced to four years imprisonment in late 2022 for baseless accusations of abuse of her authority, after criminal proceedings mined with irregularities and serious breaches of due process rules. At least a dozen other prosecutors, judges, and lawyers are currently in pre-trial detention or under investigation in similar circumstances. Organizations such as WOLA and Human Rights Watch have reported detailed evidence of this pressing matter. A group of international organizations has sent contributions to the Universal Periodic Evaluation explaining the situation to the United Nations Human Rights Council, including a report dedicated to attacks and threats against prosecutors by the very same actors, and how this jeopardizes the independence and functionality of the Public Prosecutor’s Office.  As a prosecutor and long-time criminal defense attorney, you surely understand the seriousness of these acts.
Furthermore, these same sources give an account of the government and other actors’ interference in appointing judges and prosecutors, leading to a compromised judiciary that lacks the autonomy to administer justice fairly. The judiciary’s capture by the government and private actors undermines public trust, erodes the separation of powers, and opens the door to further abuses of power. The Permanent Observatory of the Federación Centroamericana de Juezas y Jueces por la Democracia (FECAJUD), a judicial association that works on judicial independence matters in the region, regularly updates an assessment on the State of judicial independence issues in Guatemala. The lack of diversity in the Guatemalan judiciary has also been examined and criticized.
Furthermore, alongside the persecution of justice operators combating corruption and impunity, international organizations have reported a distressing escalation of criminalization, unwarranted criminal complaints, and judicial persecution against journalists investigating matters of public interest. Journalists investigating corruption, human rights violations, or illegal private sector practices have been subjected to social media smear campaigns, surveillance by the State, police harassment, and criminalization – all this with the acquiescence of the Public Prosecutor’s office and the Supreme Court of Justice–. The Reporters Without Borders’ World Press Freedom Index shows how in Guatemala, there has been an increase in attacks on journalists critical of the authorities and has had a muzzling effect on the media. In 2021, Guatemala’s press freedom ranked 61st out of 180 countries; in 2022, it ranked 124th; and in 2023, 127th.
The president of the media outlet elPeriódico José Rubén Zamora has been subject to judicial persecution by the Public Prosecutor’s Office. He was arrested for allegedly committing crimes linked to money laundering. Multiple civil society organizations demanded the immediate release of Mr. Zamora. They considered his arrest an act of judicial persecution and censorship against critical journalists and media outlets investigating corruption in Guatemala. In August 2022, the Inter-American Commission on Human Rights and its Special Rapporteur requested a working visit to the State to verify Zamora’s situation; these bodies were not as fortunate as your office, as they have not received a response. This newspaper was forced to close and cease its operations on May 15, 2023, while its director remains detained. The lawyers representing the journalists are also being harassed.
The Inter-American Commission on Human Rights, in Chapter IV of its Annual Report 2022, indicated to have available information that there are numerous complaints against journalist. For instance, there is a one from a former Minister of Communications against journalist Juan Luis Font, director of the informative space Con Criterio. The Annual Report confirmed that he decided to leave the country and reported harassment and reprisals linked to the work that discouraged him from continuing to practice journalism from Guatemala. Moreover, a court ordered an investigation against journalists from the Agencia Ocote, and there are criminal actions against journalists Sonny Figueroa and Marvin del Cid by government officials and former officials, allegedly after they published journalistic investigations that involved them. Journalist Robinson Ortega from Relax Noticias was linked to a process by the Mixed Appeals Chamber of Escuintla. On June 16, 2022, the reporter was arrested while covering a protest in Las Palmas Siquinalá, Escuintla, where he would have recorded alleged abuses of public authorities. Journalists Juan Bautista Xol, Baudilio Choc, and Carlos Choc have publicly denounced judicial processes against them and police operations in their residences after they covered a series of protests by the Maya Q’eqchi’ population in El Estor, Izabal, and about the use of public force to disperse it, in October 2021. On December 17, 2021, the Inter-American Court of Human Rights declared the State of Guatemala internationally responsible for the violation of the rights to freedom of expression, equality before the law, and participation in the cultural life of four indigenous persons who operate community radios. There are actions of institutional harassment against journalists and media outlets that are generating an atmosphere of self-censorship in the press, especially among those who investigate matters of public relevance, such as corruption and criminalization against justice operators.
Guatemala is the second worst-performing country in the Vance Center’s Latin America Anti-Corruption Assessment. Guatemala has experienced a regression in the independence and capacity of its authorities to investigate and prosecute corruption cases. This regression is the result of acts of repression that serve as disincentives for investigating, discovering, or reporting acts of corruption. Guatemala lacks anti-corruption policies that address key aspects such as identifying and managing conflicts of interest, defining post-public employment obligations and limitations, and implementing training programs for public officials on anti-corruption measures. Furthermore, asset statements are kept private in the country. There is only one generic rule prohibiting public servants from soliciting or receiving gifts directly or indirectly. In addition, the closure of CICIG in 2019 has been a major setback for the fight against corruption in the country. The CICIG was an UN-backed anti-corruption body that had been instrumental in investigating and prosecuting corruption cases. Its removal has created a significant void in the investigative and prosecutorial capacities for corruption cases, representing a major setback for anti-corruption efforts in Guatemala.
Importantly, since 2020, President Giammattei’s administration has dismantled the institutional framework that was established in accordance with the 1996 Peace Agreements, which ended the internal armed conflict. The Secretary of Peace and the Secretary of Agrarian Affairs were abolished, and both the Presidential Commission Coordinating Executive Policy on Human Rights (COPREDEH) and the National Compensation Program were dismantled. The latter was responsible for dignifying victims through support actions for exhumations and burials, truth and memory measures, cultural redress, psychosocial repair and compensation, restitution of housing, land, legal certainty, productive investment, and economic compensation.
Finally, it must be noted that Guatemala’s regulation of non-governmental organizations (NGOs) has been widely criticized for violating the International Covenant on Civil and Political Rights (ICCPR) and its severe restrictions on oversight by civil society organizations. The ICCPR, to which Guatemala is a party, guarantees the rights to freedom of association and expression. However, Guatemala’s regulatory framework imposes onerous registration processes, bureaucratic hurdles, and intrusive reporting requirements on NGOs, effectively hindering their ability to operate freely and independently. These restrictions undermine the fundamental right to association and impede NGOs’ vital role in advocating for human rights, social justice, and democratic principles. By imposing such stringent regulations, Guatemala’s government has created a climate of fear and intimidation, stifling dissent and curtailing the necessary checks and balances provided by civil society organizations.
Your swift action will serve as a beacon of hope for the people of Guatemala and reinforce the importance of an independent judiciary in upholding justice worldwide. We recommend the following actions:
A. Meeting with civil society organizations. It would give you, as the ICC prosecutor, a chance to learn about the challenges that civil society organizations and other actors are facing in Guatemala.
B. Publicly clarify, through your Office, the scope and meaning of your statements during your visit to Guatemala, to prevent the misuse of said statements by the Guatemalan government. It would not only be a measure of safety for those affected by the government’s actions, but it would also reaffirm that the ICC prosecutor is committed to accuracy and truth.
C. Issue a statement in support of domestic prosecutions of genocide and crimes against humanity in Guatemala.
Thank you for your attention to this critical issue. We are willing and open to providing any additional information or assistance that may be required.
The Cyrus R. Vance Center for International Justice
The Cyrus R. Vance Center for International Justice of the New York City Bar Association advances global justice by engaging lawyers across borders to support civil society and an ethically active legal profession. The Vance Center is a unique collaboration of international lawyers catalyzing public interest innovation that brings together leading law firms and other partners worldwide to pioneer international justice initiatives and provide pro bono legal representation to social justice NGOs. www.vancecenter.org
Robert F. Kennedy Human Rights
Grounded in the legacy of Robert F. Kennedy and his transformative leadership, we hold governments accountable, engage business to align with human rights norms, train the next generation of leaders, and celebrate agents of change in order to fulfill the charge he gave us in 1968 to “dedicate ourselves to what the Greeks wrote so many years ago, ‘to tame the savageness of man and make gentle the life of the world.’” https://rfkhumanrights.org/
Protection International Mesoamerica
Protection International is an international non-profit organisation that supports human rights defenders in developing their security and protection management strategies, including strategic communication and advocacy. Since 2007, Protection International has been working with local partners across the globe. Its office for Mesoamerica was opened in 2008. https://www.protectioninternational.org/
American Jewish World Service
Inspired by the Jewish commitment to justice, American Jewish World Service (AJWS) works to realise human rights and end poverty in Africa, Asia, Latin America and the Caribbean. We provide financial support to more than 500 local grassroots and advocacy organisations in 17 countries in Africa, Asia, Latin America and the Caribbean that are working to end poverty and advance the rights of some of the most marginalised groups in these regions. https://ajws.org/
ARTICLE 19 Mexico and Central America
ARTICLE 19 Mexico and Central America is an independent and apartidist organisation that promotes and defends the progressive advance of the freedom of expression rights and access to information for everyone, in agreement with the higher international standards of human rights to contribute to strengthening democracy. https://articulo19.org/sobre-articulo19/
Washington Office on Latin America
WOLA is a leading research and advocacy organization advancing human rights in the Americas. We envision a future where public policies protect human rights and recognize human dignity, and where justice overcomes violence. WOLA tackles problems that transcend borders and demand cross-border solutions. We create strategic partnerships with courageous people making social change—advocacy organizations, academics, religious and business leaders, artists, and government officials. Together, we advocate for more just societies in the Americas. https://www.wola.org/
Due Process of Law Foundation
DPLF is a regional human rights organization based in Washington DC, composed of professionals of diverse nationalities, whose mandate is to promote the rule of law in Latin America through analysis and proposals, cooperation with public and private organizations and institutions, exchange of experiences, and lobbying and advocacy actions. http://www.dplf.org
Impunity Watch is an international non-profit organisation that works with victims and survivors of violence to uproot deeply entrenched structures of impunity, redress gross human rights violations, and promote justice and peace. IW has worked in Guatemala for more than 15 years producing analysis on the transitional justice process, offering legal advice to victims of gross human rights violations, and lobbying for the strengthening of the rule of law. www.impunitywatch.org