INTRODUCTION
One of the most pressing obstacles to the consolidation of the Rule of Law in Guatemala is the continued existence of illegal security groups and clandestine organizations. An unresolved legacy of the internal armed conflict, the clandestine groups are illicit structures that use violence to protect their political and illicit financial interests. They are alleged to have established links with State officials, former and active members of the security apparatus, and organized criminal networks. They are believed to be responsible for the wave of threats, attacks and other acts of political violence directed against human rights defenders, judges, prosecutors, witnesses, political leaders and others, over the last several years.
Through their activities, these groups have been able to undermine the justice system and perpetuate a climate of citizen insecurity, which in turns creates a fertile ground for the further spread of violence, corruption and criminal activities. The result is a self-perpetuating downward spiral of violence that jeopardizes the Rule of Law and functioning of democracy in Guatemala. The considerable influence of the clandestine groups on State actors and their ability to infiltrate State institutions have impaired the Guatemalan authorities’ ability to effectively investigate them.
In late December 2006, the Guatemalan government and the United Nations signed an agreement to establish the International Commission against Impunity in Guatemala (Comisión Internacional Contra la Impunidad en Guatemala – CICIG), to assist local authorities in investigating and dismantling the clandestine groups.
The CICIG is the second attempt made at establishing a mechanism to investigate and dismantle these groups. A first effort was made in 2003, which resulted in an agreement signed between the United Nations and the Portillo administration to establish the Commission for the Investigation of Illegal Armed Groups and Clandestine Organizations (CICIACS). The CICIACS proposal stirred much debate in Guatemala, and in August 2004, Guatemala’s Constitutional Court rendered that several aspects of the agreement violated the Guatemalan Constitution, grinding the process to a halt.
The clandestine security organizations continue to pose a grave threat to the functioning of democracy and the rule of law in Guatemala. The wall of impunity that these groups and their sponsors have constructed to guarantee the continuity of their illegal activities has hindered the minimal efforts that have been undertaken. The CICIG, therefore, provides a unique and vital opportunity to help strengthen the justice system and restore the Rule of Law in Guatemala.
FUNCTIONS OF THE CICIG
With an initial life span of two years, the UN-led commission will seek to determine the existence of illegal security groups and clandestine security organizations, their structure, forms of operation, sources of financing and possible links to State actors or other sectors that threaten civil and political rights in Guatemala. It will also promote the dismantling of these networks, as well as the prosecution of individuals involved in their activities.
More concretely, the CICIG will contribute to the consolidation of the Rule of Law by assisting the relevant State institutions in the prosecution and punishment of the clandestine groups, promoting key justice and police reforms, and by contributing to effective institutional vetting processes.
a) Collaborating with the State in the criminal prosecution and punishment of members of the clandestine groups:
The CICIG will be able to file criminal complaints with the relevant local authorities in order to promote the criminal prosecutions of individuals involved in the clandestine groups. In addition, it will also be granted the capacity to act as a joint party or “querellante adhesivo” to the State prosecution.
As a joint party, the CICIG will be able to provide the Public Prosecutor’s Office with key and pertinent evidence resulting from its investigations to help ensure solid criminal cases. The Commission will also have the capacity to provide technical advice and assistance to the relevant state institutions charged with conducting the criminal investigations and subsequent prosecution, and request and monitor the adoption of measures to ensure the safety of witnesses, victims and all those who assist in the investigation.
b) Promoting key judicial and police reforms:
The Commission also seeks to strengthen domestic institutions, such as the Public Prosecutor’s office, police and judiciary, to ensure that the clandestine groups are dismantled and do not re-surface, including by recommending the legal and institutional reforms necessary to achieve this goal.
With this in mind, the CICIG will have the power to enter into cooperation agreements with the Public Prosecutor’s Office, the Supreme Court, the Office of the Human Rights Ombudsman, the National Civilian Police and any other institution in order to successfully carry out its mandate.
Moreover, through the agreement, the Guatemalan government, in consultation with the UN, commits to developing and submitting to the Guatemala Congress a series of reforms necessary to ensure the proper functioning of the criminal investigation and judicial prosecution system and to bring the legal system into compliance with international human rights conventions.
c) Contributing to effective institutional vetting processes:
Given the ability of the clandestine groups to infiltrate and debilitate State agencies, the CICIG will also have the ability to advise the relevant State institutions in the implementation of necessary administrative proceedings against government officials involved in the clandestine groups.
In addition, the Commission will have the authority to report the names of government officials who in the exercise of their duties have allegedly committed administrative offenses, particularly those officials accused of interfering with the Commission’s work, so that the appropriate administrative proceedings can be initiated. Administrative complaints do not exclude the possibility of initiating criminal proceedings through the Public Prosecutor’s Office when deemed necessary.
NEXT STEPS
The agreement must first be ratified by the Guatemalan Congress in order for the Commission to be up and running. In February, the Executive officially submitted the agreement to Congress for ratification. The agreement was passed to the International Relations committee for review, which in turn sent it to the Guatemala Constitutional Court. The Constitutional Court is expected to render an opinion on the CICIG by early May. Barring an unfavorable ruling from the Constitutional Court, the agreement will be returned to Congress for ratification.
While one agreement cannot be expected to act as a panacea for Guatemala’s deeply rooted social, economic, and political problems, the CICIG is an innovative mechanism that can help lay the groundwork for long-term progress in overcoming the culture of impunity and establishing rule of law and due process in Guatemala.
