looking the monster in the face

IFP Security Cluster
Country case study: Guatemala
‘Looking the Monster in
the Face’:
The International Commission against Impunity
in Guatemala and the ‘Rule of Law-builders Contract’
Julia Schünemann
October 2010
This initiative is funded
by the European Union
About IfP
The Initiative for Peacebuilding (IfP) is a consortium led by International Alert and funded by the European
Commission. IfP draws together the complementary geographic and thematic expertise of 10 civil society
organisations (and their networks) with offices across the EU and in conflict-affected countries. Its aim is to
develop and harness international knowledge and expertise in the field of conflict prevention and peacebuilding
to ensure that all stakeholders, including EU institutions, can access strong independent analysis in order to
facilitate better informed and more evidence-based policy decisions.
This document has been produced with the financial assistance of the EU. The contents of this document are the
sole responsibility of IfP/FRIDE and can under no circumstances be regarded as reflecting the position of the EU.
To learn more, visit http://www.initiativeforpeacebuilding.eu.
About FRIDE
FRIDE is a think tank based in Madrid that aims to provide the best and most innovative thinking on Europe’s role
in the international arena. It strives to break new ground in its core research interests of peace and security, human
rights, democracy promotion, and development and humanitarian aid, and mould debate in governmental and nongovernmental bodies through rigorous analysis, rooted in the values of justice, equality and democracy. FRIDE
seeks to provide fresh and innovative thinking on Europe’s role on the international stage. As a prominent European
think tank, FRIDE benefits from political independence, diversity of views and the intellectual background of its
international staff. To learn more, visit http://www.fride.org.
Cover image: © Raúl Illescas
© Initiative for Peacebuilding 2010
All rights reserved. No part of this publication may be reproduced, stored in a retrieval system or transmitted in any form or by any means, electronic,
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‘Looking the Monster in the Face’:
The International Commission against Impunity in
Guatemala and the ‘Rule of Law-builders Contract’
4 • Initiative for peacebuilding
Author profile
Julia Schünemann
Julia Schünemann is a researcher for FRIDE and an independent consultant in the field of peace and security.
She works on EU external relations, state-building, conflict prevention, early warning and peacebuilding. She
holds a PhD degree in International Relations. Prior to joining FRIDE, she worked as an associate researcher
at the Instituto Complutense de Estudios Internacionales (ICEI), Madrid, and for the European Commission’s
Directorate General of External Relations, Brussels.
ACKNOWLEDGEMENTS
The author would like to thank the many people that have shared valuable insights in interviews and informal
discussion in Europe as well as in Guatemala. Special thanks are extended to Martín Rodriguez Pellecer for his
assistance in establishing relevant contacts in Guatemala and the ongoing exchange of thoughts throughout the
research process. I would also like to thank Lucia Montanaro for providing useful comments on the first draft of
this document and our copy editor Mary Tobin.
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‘Looking the Monster in the Face’ •
5
Contents
Acronyms
6
Executive Summary
7
Introduction
9
The Context: A Dual Crisis of Legitimacy and Security
11
36 Years of Internal Armed Conflict
11
The Guatemalan Peace Accords from 1996: Ambitious and Comprehensive but Largely Unfulfilled 11
The Legacy of the Conflict: A Dual Crisis of Security and Legitimacy
12
The International Commission against Impunity in Guatemala (CICIG)
15
Lessons Learned Taken into Account by the International Community
16
CICIG’s Nature, Mandate and Powers
17
The ‘Rule of Law-builders Contract’
18
Putting the CICIG in Place
19
CICIG’s Selection of Paradigmatic Cases and Private-sector Elite’s Interests
20
State Elites: CICIG’s Dependency on Guatemalan Institutions
22
Getting into Domestic Politics: CICIG’s Public “Vetos”
24
Conclusions and Recommendations
26
Main Achievements and Challenges
26
Summary of Recommendations
29
To the state of Guatemala
29
To the international community
30
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Acronyms
CEH
CICIACS
CICIG
FLACSO
FRG
GDP
ICEFI
ICG
MINUGUA
OCHA
OECD
PAC
PNC
SSR
UEFAC
UNDP
URNG
WOLA
Historical Clarification Commission/Comisión de Esclarecimiento Histórico
International Commission for the Investigation of Illegal Bodies and Clandestine Security
Groups/Comisión de Investigación de Cuerpos Ilegales y Aparatos Clandestinos y de
Seguridad
International Commission against Impunity in Guatemala/Comisión Internacional Contra la
Impunidad en Guatemala
Latin American Faculty for Social Sciences/Facultad Latinoamericana de Ciencias Sociales
Guatemalan Republican Front/Frente Republicano Guatemalteco
Gross domestic product
Instituto Centroamericano de Estudios Fiscales
International Crisis Group
UN Verification Mission in Guatemala
UN Office for the Coordination of Humanitarian Affairs
Organisation for Economic Cooperation and Development
Civilian Defence Patrols/Patrullas de Autodefensa Civil
National Civilian Police/Policía Nacional Civil
Security sector reform
Special Prosecutor’s Office for CICIG/Unidad Especial de Fiscalía de Apoyo a la CICIG
UN Development Programme
Guatemalan National Revolutionary Unity/Unidad Revolucionaria Nacional Guatemalteca
Washington Office on Latin America
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‘Looking the Monster in the Face’ •
7
Executive Summary
The title of this report is taken from a quotation from Carlos Castresana, former head of the International
Commission against Impunity in Guatemala (CICIG). Following the capture of Guatemala’s former President
Portillo, in a TV interview during the programme Viva la mañana on Guatevisión, Guatemala, on 18th March 2010,
Castresana stated, ‘The problem is that, in Guatemala, criminal organisations had never been confronted. CICIG
is doing it, but so is the Prosecutor General’s Office and the Judiciary. Let’s say it: we are looking the monster in
the face, we are holding its gaze, and it is reacting.’
Fourteen years after the end of the internal armed conflict in 1996, Guatemala simultaneously faces a post-conflict
recovery as well as a dual crisis of security and legitimacy. State institutions are permeated by criminal structures
and therefore unable to stall rampant levels of violence, crime and insecurity. The rate of impunity amounts to 99
percent. CICIG, a hybrid body based on an agreement between the state of Guatemala and the UN Secretary,
has been in place since 2007. CICIG’s mandate is to support, strengthen and assist Guatemalan institutions
in identifying, investigating, prosecuting and ultimately dismantling domestic illegal security apparatuses and
clandestine security organisations. Such a mandate is unprecedented among UN or other international efforts
to strengthen the rule of law.
This report is about state-building in the field of the rule of law and society in post-conflict Guatemala. The
provision of security and the safeguarding of the rule of law are core state functions; both are paramount to a
state’s legitimacy. The report seeks to describe and analyse a sui generis approach towards the strengthening
of the rule of law in a protracted-conflict environment. It takes into account the interplay between external and
internal actors, the ‘rule of law-builders contract’ and domestic power dynamics, as well as the political settlement
underpinning the Guatemalan state.
An important distinctive feature of CICIG is its hybrid nature. The Commission operates completely within
the Guatemalan legal system and incorporates international and local staff. It is not vested with independent
prosecutorial powers and can only join cases as a private prosecutor. CICIG’s hybrid character is both its greatest
virtue and its Achilles’ heel. On the one hand, it ensures local ownership and legitimacy and sets the conditions for
the building of local capacity instead of the temporary substitution through international presence. On the other
hand, it significantly limits the Commission’s scope for manoeuvre as it lacks independent prosecutorial powers.
Ultimately, the most important factor for determining CICIG’s success is the level and quality of collaboration from
the Guatemalan state institutions. The latter has been erratic throughout the last two and a half years, especially
when it comes to the Ministry of Interior and the National Civilian Police (PNC), but also the Presidency, the
Judiciary and the Guatemalan Congress. The case of CICIG is an example for compromised state-building in
the field of the rule of law. Compromised peacebuilding implies that a negotiation takes place between external
actors and local elites, where both try to make sure that their interests are safeguarded as much as possible,
although showing some flexibility to adjust to the circumstances. The very setup of CICIG, the selection of cases
for investigation and the level and quality of cooperation from local institutions to fulfil its mandate illustrate this
ongoing process of negotiation.
Over recent years, the Commission has made the Guatemalan justice system work to detain and prosecute a
number of high-profile individuals. It has proven that justice is possible in Guatemala, applying Guatemalan law, in
Guatemalan courts, using Guatemalan criminal procedure. It has proven that no one is above the law and exempt
from prosecution. This is what is widely called CICIG’s ‘demonstration effect’. Sustainability – achieving a lasting
effect on the Guatemalan justice system – is the greatest challenge for CICIG, namely, whether the Commission
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will have created enough capacity within the Guatemalan state, and whether institutions will be resilient against
infiltration by criminal networks.
Key recommendations to the international community include the following: the UN should extend CICIG’s
mandate for two more years; UN Member States need to guarantee the Commission’s budget through sufficient
financial contributions; once CICIG’s mandate ends, the donor community needs to maintain a common strategic
approach towards the security and justice sector in Guatemala. Furthermore, the longer CICIG is in place, the
more the focus should move towards the aspect of local capacity-building and the promotion of the necessary
legal and institutional reforms to combat impunity and organised crime. Sustainability considerations should
progressively prevail over the ‘demonstration effect’. On the other hand, the state of Guatemala needs to boost
its commitment and leadership to fight impunity. Crucial issues that need to be addressed are police reform,
the creation of a special investigations unit within the PNC, the reform of the penitentiary system, improved
protection of victims and witnesses, and progress in legislative reforms.
Keywords: Guatemala, impunity, CICIG, rule of law, organised crime
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‘Looking the Monster in the Face’ •
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Introduction
Guatemala simultaneously faces a post-conflict recovery as well as a dual crisis of security and legitimacy.1
State institutions are permeated by criminal structures and therefore unable to stall rampant levels of violence,
crime and insecurity. The rate of impunity lies above 99 percent,2 with only 2 out of every 100 cases actually
going to court.3 The International Commission against Impunity in Guatemala (CICIG), a hybrid body based on an
agreement between the state of Guatemala and the UN Secretary-General, has been in place since September
2007. CICIG is designed to address the infiltration of Guatemalan state institutions by criminal clandestine
organisations and the operation of violent illegal security forces outside of the control of the state.
This report is about state-building in the field of the rule of law and society in post-conflict Guatemala.4 Statebuilding is a sub-component of peacebuilding; it refers to the strengthening or construction of effective and
legitimate governmental institutions, often in post-conflict and fragile contexts.56 State-building is an essentially
endogenous process, the course of which donors can affect by their interventions but not determine.7 The
provision of security and the safeguarding of the rule of law are core state functions, which require the existence
of a codified and promulgated body of laws with a reasonably effective police and justice system.8 As statebuilding refers to the construction of legitimate governmental institutions, it necessarily requires attentiveness
to the relationship between these institutions and civil society.9 The provision of security and the rule of law are
paramount to a state’s legitimacy. When states are not able to control the legitimate monopoly of violence within
their territory and when rival rules trump state rules within a given society, states necessarily lack legitimacy.10
This report seeks to describe and analyse a sui generis approach towards the strengthening of the rule of
law in a protracted conflict environment. It takes into account the interplay between external (i.e. international)
and internal (i.e. local) actors and domestic power dynamics as well as the political settlement11 underpinning
the Guatemalan state. There is increasing acknowledgement among practitioners and researchers that the
international community must be more sensitive to the specific context in which it is intervening, that there are no
quick fixes or blueprint solutions and that there is a significant need to gather deeper knowledge of the history
of a country. The extrapolated lessons learned and recommendations are primarily directed to international
policymakers, involved either directly in the Guatemalan peacebuilding process or in other fragile states with
comparable dynamics of violence and conflict.
1
The description ‘dual crisis of security and legitimacy’ is borrowed from M. Barnett and C. Zürcher (2009). ‘The peacebuilder’s contract: How
external statebuilding reinforces weak statehood’. In R. Paris and T. D. Sisk. The dilemmas of statebuilding. Confronting the contradictions
of postwar peace operations. London: Routledge. p.28.
2 CICIG (2010). Tercer años de labores. Resumen ejecutivo [Third year of activities. Executive summary]. p.3. Available at http://cicig.org/
uploads/documents/resumen_ejecutivo-informe_tres_anios.pdf.
3 This figure refers to 2009 and was provided by the criminal division of the Supreme Court of Justice based on a sample of 600,000 cases,
300,000 of which had been denounced and registered by the Judiciary. See also UN Press Conference on International Commission
against Impunity in Guatemala. Available at http://www.un.org/News/briefings/docs/2009/090224_CICIG.doc.htm. Comisión de
Derechos Humanos de Guatemala, Informe Seminal Sobre Derechos Humanos, No. 4/2009 (30th January).
4 Guatemala is a country in Central America bordered by Mexico to the North and West, the Pacific Ocean to the Southwest, Belize to the
Northeast, the Caribbean to the East, and Honduras and El Salvador to the Southeast. Guatemala has an estimated population of almost
13.3 million.
5 R. Paris and T. D. Sisk (2009). Op. cit. p.14.
6 See also the Organisation for Economic Cooperation and Development (OECD) definition according to which state-building is a ‘process
of strengthening the capacity, institutions and legitimacy of the state driven by state-society relations’. (OECD (2008). Initial findings on
statebuilding. Paris: OECD.)
7 OECD (2008). Op. cit.; OECD (2010). Do no harm. International support for statebuilding. Paris: Conflict and Fragility Series.
8 R. Paris and T. D. Sisk (2009). Op. cit.
9 Ibid., p.14.
10 See also OECD (2010). Op. cit. pp.18–19 and 48.
11 As argued in OECD (2010). Op. cit., ‘every state is founded on what can best be conceptualised as a political settlement, or a balance of
power and interests, and understanding the parameters of the political settlement is crucial to understanding how external intervention may
have an impact on statebuilding’.
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The first section briefly describes the dual crisis of legitimacy and security Guatemala is facing 14 years after
the end of the internal armed conflict in 1996 and provides information on the main drivers of conflict and
violence today. The second section describes the CICIG’s innovative nature, as well as its mandate and powers,
and analyses what can be described as the ‘rule of law-builders contract’12 between external and internal actors
fighting impunity in Guatemala. Finally, the report addresses the Commission’s main achievements and challenges
and provides recommendations for the international community.
The report takes a comprehensive security approach. This implies that the threat of illicit criminal structures
operating within the state is seen as a threat both to the very integrity of the state and to Guatemala’s population,
which is exposed to severe levels of human insecurity including physical security. As mentioned above, the
Guatemalan state does not hold the legitimate monopoly of violence over its territory nor can it ensure the rule
of law within its society and protect its population. Therefore, it lacks legitimacy.
The information and qualitative analysis in this report is essentially based on primary data gathered in research
interviews undertaken in Guatemala City as well as in Brussels, Madrid and Geneva between September 2009
and June 2010. It is complemented by secondary data collected through desk research drawing on relevant
literature, media coverage, official policy documents and other reports. Two field trips to Guatemala in October
2009 and February 2010 allowed for interviewing and consulting representatives of the CICIG, the EU delegation,
EU Member States, the Guatemalan government and Guatemalan civil society.
The relevance of this report is based on the following considerations. Firstly, the case of the CICIG constitutes
an example for a common strategic approach and relatively successful donor coordination in a field where
donor support is often provided in an uncoordinated piecemeal fashion.13 Secondly, the CICIG is the first
international body ever to address the threat of organised crime entrenched in state institutions rather than
human rights violations perpetrated by a state. Furthermore, the case can shed light on what local ownership
means concretely, how it is implemented and what are the challenges. In addition, the case provides evidence
for a number of arguments of which the research community on state-building is increasingly becoming aware:
firstly, that external actors can influence processes of state-building but not determine them; secondly, that
state-building is a long-term endeavour; and thirdly, that local politics, power dynamics and the aspect of elite
“buy in”14 are crucial factors to bear in mind.
12 This term draws on the ‘peacebuilder’s contract’, a model developed by Barnett and Zürcher with the purpose of explaining why and how
external state-building can reinforce weak statehood. (M. Barnett and C. Zürcher (2009). Op. cit.)
13 See also OECD (2010). Op. cit. pp.18 and 169; L. Nathan (2007). Local ownership of security sector reform: A guide for donors. p.8.
Available at http://www.crisisstates.com/download/others/SSRReformNathan2007.pdf.
14 The concept of elite “buy in” or “opt out” refers to whether or not powerful elites have incentives to support state-building processes and
externals involved. See also OECD (2010). Op. cit.
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‘Looking the Monster in the Face’ •
11
The Context: A Dual Crisis of
Legitimacy and Security
36 Years of Internal Armed Conflict
From 1960 to 1996 Guatemala encountered an internal armed conflict, which left over 200,000 people dead
or “disappeared” and over a million displaced, the majority from rural, indigenous populations.15 In 1997, after the
signing of the peace accords between the government and the insurgents in 1996, a transitional justice-focused
truth and reconciliation commission was put in place to investigate the human rights violations that occurred during
the internal armed conflict. The Historical Clarification Commission (CEH)16 concluded that the government and its
paramilitary groups – the Civilian Defence Patrols (PAC) – were responsible for the vast majority of these victims.
It registered 626 massacres by the army, mostly in poor, rural, predominantly Mayan areas.17 The CEH stated ‘the
violence was fundamentally directed by the State against the excluded, the poor and above all, the Mayan people,
as well as against those who fought for justice and greater social equality’.18 During the conflict, women, mostly
of Mayan descent, were systematically subjected to sexual violence and torture.19 The CEH also arrived at the
conclusion that ‘agents of the State of Guatemala, within the framework of counterinsurgency operations carried
out between 1981 and 1983, committed acts of genocide against groups of Mayan people’.20
The Guatemalan Peace Accords from 1996: Ambitious and
Comprehensive but Largely Unfulfilled
There is wide agreement that the Guatemalan Peace Accords from 199621 were very comprehensive and
ambitious regarding their transformative potential for structural change,22 but that they have been insufficiently
implemented.23 As Barnett and Zürcher acknowledge, ‘in order for there to be a stable peace, war-torn societies
15 Commission for Historical Clarification (CEH) (1999). ‘Guatemala: Memory of silence’, Report of the Commission for Historical Clarification.
Conclusions and recommendations. Guatemala City. Available at http://shr.aaas.org/guatemala/ceh/report/english/toc.html.
16 The CEH was established through the Accord of Oslo on 23rd June 1994, in order to clarify, with objectivity, equity and impartiality, the
human rights violations and acts of violence connected with the armed confrontation that caused suffering among the Guatemalan people.
17 CEH (1999). Op. cit., paragraph 86.
18 Ibid., paragraph 3.
19 Ibid., paragraph 91.
20 Ibid., paragraph 122.
21 The Peace Accords were signed between the administration of President Álvaro Arzú and the Guatemalan National Revolutionary Unity
(URNG) guerrilla group.
22 The Peace Accords consisted of several separate, interrelated components, each of which was signed in 1994 and included the following
agreements: Comprehensive Agreement on Human Rights; Agreement on the Resettlement of the Population Groups Uprooted by the
Armed Conflict; Agreement on the Establishment of the Commission to Clarify Past Human Rights Violations and Acts of Violence that
have Caused the Guatemalan Population to Suffer; Agreement on Identity and Rights of Indigenous Peoples; Agreement on Social and
Economic Aspects and Agrarian Situation Conducted; Agreement on Strengthening Civilian Power and on the Role of the Armed Forces
in a Democratic Society; Agreement on the Definitive Ceasefire; Agreement on Constitutional Reforms and Electoral Regime; Agreement
on the Basis for the Legal Integration of the Unidad Revolucionaria Nacional Guatemalteca; Agreement on a Firm and Lasting Peace.
23 J. Sisson (Ed.) (2007). Dealing with the past in post-conflict Societies: Ten years after the peace accords in Guatemala and BosniaHerzegovina. Swisspeace Annual Conference, 2006; B. Arévalo de León, J. Beltrán Donha and P. H. Fluri (Eds.) (2005). Hacia una Politica de
Seguridad para la Democracia en Guatemala [Towards a security policy for democracy in Guatemala]. Investigacion-Accion Participativa para
la Reforma del Sector Seguridad. Geneva: DCAF, Lit Verlag. p.74; International Crisis Group (ICG) (2010). ‘Guatemala: Squeezed between
crime and impunity’, Latin America Report, 33, 22nd June; UN Development Programme (UNDP) (2006). Evaluation of UNDP assistance
to conflict-affected countries. Case study Guatemala. New York. Available at http://www.undp.org/evaluation/documents/thematic/conflict/
Guatemala.pdf; S. C. Peacock and A. Beltran (2003). Hidden powers in post-conflict Guatemala: Illegal armed groups and the forces behind
them. Washington Office on Latin America (WOLA): Washington DC; P. Gavigan (2009). ‘Organized crime, illicit power structures and
Guatemala’s threatened peace process’. In International peacekeeping. pp.62–76; (CICIG) (2010). Op. cit.
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12 • Initiative for peacebuilding
must develop the institutions, intellectual tools, and civic culture that generates the expectation that individuals
and groups will settle their conflicts through non-violent means’.24 In Guatemala, the anticipated overhaul of the
military – as well as the transformation of an authoritarian and exclusionary political and economic setup that
systematically marginalised the majority of citizens, in particular from the indigenous population, and served
the interests of a small elite – did not take place. The guerrilla and government actors who negotiated and
signed the Peace Accords did not have the political leverage and capacity to ensure implementation, and
powerful elites as well as conservative and populist parties successfully obstructed key reforms.25 Furthermore,
the leverage regarding implementation was largely weakened by the polarisation of civil society focusing on
isolated sections of the Peace Accords rather than acting as a unitary pressure group. In short, while the peace
process successfully ended large-scale state repression, flawed implementation of reforms intended to broaden
democratic participation, reduce the influence of the armed forces and the traditional private-sector elite in
governance, install a culture of human rights and promote equitable sustainable development have impeded
achieving lasting structural change of the type that can transform existing power structures and set the conditions
for peace. In addition, after the conflict, the Guatemalan state was never properly demilitarised, which explains the
mutation of military intelligence and counter-insurgency structures into illegal bodies and clandestine security
groups operating within the very state.
In 1999 the CEH concluded that ‘the structure and nature of economic, cultural and social relations in Guatemala
are marked by profound exclusion, antagonism and conflict. The proclamation of independence in 1821 saw the
creation of an authoritarian State which excluded the majority of the population, was racist in its precepts and
practices, and served to protect the economic interests of the privileged minority’.26
Today, income inequality in Guatemala is still among the highest in the region,27 tax collection is among the lowest
in Latin America amounting to some 10 percent of gross domestic product (GDP) in 2009, and fiscal policies
do not contribute to any redistribution of wealth.28 Extreme poverty and high levels of exclusion persist especially
in the rural, indigenous areas of the country and among women, who, in addition, are exposed to high levels of
gender-based violence and exclusion.29 According to the UN Office for the Coordination of Humanitarian Affairs
(OCHA), Guatemala is currently in the grip of a protracted food insecurity crisis.30
This means that the conflict’s root causes remained in place. At the same time, old patterns of state violence have
shifted towards and partially merged with new forms of violence, in particular related to transnational organised
crime. While actors have changed over time, traditional mechanisms of state capture such as corruption,31
impunity and clientelism continue to be the same. The state and its institutions are too weak to address rapidly
rising crime rates and a situation of increasing human insecurity.
The Legacy of the Conflict: A Dual Crisis of Security and
Legitimacy
Post-conflict Guatemala is suffering a sustained dual crisis of security and legitimacy. The country is one of the
world’s most violent places, with some 6,500 murders in 2009, more than the average yearly killings during
the civil war and roughly twice Mexico’s homicide rate.32 Transnationally operating drug cartels as well as the
concomitant violence constitute the main security issue today. Over recent years the level of crime, as well as
24
25
26
27
28
29
30
31
32
M. Barnett and C. Zürcher (2009). Op. cit. p.23.
P. Gavigan (2009). Op. cit. p.63.
CEH (1999). Op. cit.
The Gini-coefficient for Guatemala is 0.5904 (2009); the richest 20 percent of the population receives 40 percent of the national income.
See Instituto Centroamericano de Estudios Fiscales (ICEFI) (2010). Lente fiscal centroamericano. Investigación de coyuntura. 2010:
el comienzo de la recuperación para Centroamérica [Central American fiscal overview. Cyclical review: 2010: The beginning of Central
America’s rebound]. Guatemala City: ICEFI. p.24.
Ibid.
UNDP (2009). ‘Overcoming barriers: Human mobility and development’, Human Development Report 2009. Available at http://hdrstats.
undp.org/en/countries/data_sheets/cty_ds_GTM.html.
http://ochaonline.un.org/humanitarianappeal/webpage.asp?Page=1845.
On Transparency International’s Corruption Perception Index 2009, Guatemala ranked 84th among 180 countries.
(ICG) (2010). Op. cit. p.1.
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‘Looking the Monster in the Face’ •
13
drug-related violence, has risen sharply.33 In addition to the rise of clandestine groups, many directed by exsenior military officers and politicians, various Mexican drug cartels34 are active in Guatemala, and violent conflict
erupted between them and the government over regional predominance.35 Parts of the Guatemalan territory
are controlled by these drug cartels.36 In December 2008 Carlos Castresana, at the time head of the CICIG,
warned that the drug cartels could take over Guatemala City in two years’ time if the authorities did not stop their
infiltration in state institutions.37
The Guatemalan state cannot provide security within its territory and ensure the rule of law within society.
State institutions are unable to address rampant violence and crime due to lack of resources, corruption and
infiltration by illegal and clandestine security organisations, which operate with almost total impunity given the
links to the very state actors tasked with prosecuting them.38 These groups are a legacy of the civil war and
have their roots in military intelligence and counter-insurgency structures established during the conflict, which
after 1996 have never been dismantled.39 They protect the interests and illegal activities of a small elite, which
historically has controlled the state via networks of clientelism, political connections, practices of corruption
and impunity. As Gavigan writes, these groups ‘had forged ties with the business elite, corrupt police officers,
judiciary and customs officials and political actors to participate in the highly lucrative international drugs transshipment business and an array of other illicit activities’.40 Their activities have undermined the justice system
and perpetuated a climate of citizen insecurity. Already in 2002, Amnesty International41 described Guatemala
as a ‘corporate mafia state’ built on an alliance of traditional sectors of the oligarchy, new entrepreneurs, corrupt
police and military officers, and common criminals. Currently, two former Ministers of Interior of the Colom
administration face corruption charges. In less than a year, two chiefs of the National Civilian Police (PNC)42 have
been arrested due to involvement in activities related to drug trafficking.43
The state’s impotence is eroding its legitimacy among the population, ordinary people and elites. Indicators for
this are the proliferation of private security companies44 – private security guards far outnumber policemen – the
widespread possession of small arms and light weapons, and some communities turning to extra-institutional
vigilantism including cases of extrajudicial executions.45 In some parts of Guatemala, police coverage comprises
just one officer per 3,000 citizens.46 A state’s legitimacy is the acceptance in society that the organisation and
institutions that make up the state have the ‘right to rule’.47 A state’s performance – that is what it delivers or
accomplishes, for example in terms of providing security and justice – is crucial to determine its legitimacy.
Processes also matter, such as if a state permits or fights corruption, for example.48
The provision of physical security is one of the most essential grounds for legitimacy.49 According to a recent Latin
American Faculty for Social Sciences (FLACSO) survey, almost 80 percent of Guatemalan citizens interviewed
say they ‘always’ or ‘almost always’ feel concerned that they will be a victim of violent crime in their everyday
33 Heidelberg Conflict Barometer (2009). Conflict Barometer 2009. 18th Annual Conflict Analysis. Heidelberg Institute for International
Conflict Research. p.42.
34 These include Los Zetas, Sinaloa Cartel and the Golfo Cartel. Under heavy pressure in Mexico, Mexican drug-trafficking organisations have
moved into Guatemala to compete for control of Andean cocaine transiting to the US.
35 Heidelberg Conflict Barometer (2009). Op. cit. p.47; (ICG) (2010). Op. cit.
36 Such as the provinces of Huehuetenango, some areas in Alta Verapaz, Izabal, Quiché, Petén, San Marcos, Jutiapa and Zacapa.
37 See also ‘Guatemala fears Mexico drug spillover’, BBC. Available at http://news.bbc.co.uk/2/hi/americas/7786392.stm.
38 A. Hudson and A. W. Taylor (2010). ‘The International Commission against Impunity in Guatemala. A new model for international criminal
justice mechanisms’, Journal of International Criminal Justice, Vol. 8, p.56; S. C. Peacock and A. Beltran (2003). Op. cit.
39 See also P. Gavigan (2009). Op. cit. p.62; ‘CICIG: La primera fase de un nuevo experimento’ [CICIG: the first phase of a new experiment],
Radio Nederland, 2 August 2010. Available at http://www.rnw.nl/espanol/article/cicig-la-primera-fase-de-un-nuevo-experimento.
40 P. Gavigan (2009). Op. cit. p.62.
41 Amnesty International (2002). Guatemala’s lethal legacy: Past impunity and renewed human rights violations. London: Amnesty
International, International Secretariat. p.49.
42 Porfirio Pérez Paniagua in August 2009 and Baltasar Gómez in March 2010. See also press conference on capture of Gómez. Available at
http://cicig.org/index.php?page=conferencia-de-prensa-sobre-captura-director-pnc.
43 See also ‘Reaching the untouchables’, Economist, 11th March 2010.
44 See also ‘Guards in Guatemala: Protection and threat’, Washington Post. Available at http://www.washingtonpost.com/wp-dyn/content/
article/2009/04/23/AR2009042304220.html.
45 See also ‘Report of the Special Rapporteur on Extrajudicial Executions, Summary on Arbitrary Executions’, UN Doc A/HRC/4/20/Add.2,
19th February 2007. p.17.
46 Comisión de Derechos Humanos de Guatemala, Informe Seminal Sobre Derechos Humanos, No. 4/2009, 30th January. p.7.
47 OECD (2010). Op. cit. p.47; see also R. Paris and T. D. Sisk (2009). Op. cit. p.14f.
48 OECD (2010). Op. cit. p.48.
49 Ibid.
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14 • Initiative for peacebuilding
life.50 Almost 94 percent consider crime an important or very important threat to the country and their personal
safety. Unemployment (88.8 percent), crime (85.1 percent) and narco-trafficking (81.5 percent) are identified
as the most important threats.51 In Guatemala, the gap between social expectations and the state’s capacity to
meet them is growing, which also explains why more and more people claim commonly labelled repressive “mano
dura” – heavy-handed or iron-fist – policies are used to fight crime and violence.
According to another survey,52 33.7 percent of Guatemalans interviewed preferred “mano dura” policies to
resolve the country’s problems. The same survey carried out in 2006 found that 31.7 percent acknowledged
they would accept a coup d’état if necessary to re-establish security, and 36 percent approved of vigilantism.53
The survey54 established a clear correlation between the perception of personal insecurity and the belief in the
political legitimacy of core regime institutions including the government, the justice system, the Supreme Court
of Justice, Congress and political parties. The average level of legitimacy or support for political institutions was
significantly higher among those who felt safe or very safe in their neighbourhood compared to those feeling
somewhat unsafe or very unsafe.55
50 The survey has an urban bias as almost only citizens living in Latin America’s big cities were interviewed. In the case of Guatemala, the
sample exclusively comprised citizens from the capital, Ciudad de Guatemala.
51 FLACSO (2010). ‘Estudio de opinión pública en Latinoamérica 2009–2010. Gobernabilidad y Convivencia Democrática en América
Latina’ [Study on public opinion in Latin America 2009–2010]. Available at http://www.flacso.org/publicaciones/flacso-ipsos-final/; G.
Aguilera Peralta (2008). ‘Enfrentar la violencia con “mano dura”: políticas de contención en Centroamérica’ [Facing violence with “iron fist”:
Politics of containment in Central America]. In Pensamiento Iberoamericano 2/2, (In)seguridad y democracia: un reto para la democracia
[Insecurity and democracy: A challenge for democracy], pp.125–40.
52 D. Azpuru (2008). ‘Political culture of democracy in Guatemala, 2008: The impact of governance’, VIII study on the democratic values of
Guatemalans (Americas Barometer). p.144. Available at http://barometrodelasamericas.org.
53 D. Azpuru (2007). Cultura política de la democracia en Guatemala 2006 [Political culture of democracy in Guatemala 2006]. Barómetro
de las Américas. p.162.
54 D. Azpuru (2008). Op. cit. p. 24–5.
55 In the case of those feeling very safe in their neighbourhood exceeding the 50 points on the 0–100 scale and dropping closest to 35 points
in the case of those feeling somewhat unsafe or very unsafe.
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‘Looking the Monster in the Face’ •
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The International Commission against
Impunity in Guatemala (CICIG)
CICIG56 is based on an agreement between the State of Guatemala and the UN Secretary-General from 2006.
This agreement, in turn, draws on a renegotiated proposal from 2003 to establish an International Commission
for the Investigation of Illegal Bodies and Clandestine Security Groups (CICIACS)57 which had a similar mandate
to CICIG but which was equipped with independent prosecutorial powers. CICIG had an initial two-year mandate,
which was renewed in September 2009 for another two years. CICIG’s mandate is to support, strengthen and
assist Guatemalan institutions in identifying, investigating, prosecuting, and ultimately dismantling domestic illegal
security apparatuses and clandestine security organisations.58 It is not vested with independent prosecutorial
powers and can only join cases as a private prosecutor (see also below). Such a mandate is unprecedented
among UN or other international efforts to strengthen the rule of law.59 It is the first international criminal justice
mechanism not targeted at serious human rights violations but rather at dismantling organised crime or its
infiltration in state institutions.
This section addresses several aspects of CICIG. Firstly, it highlights some distinct features of the Commission,
which can be regarded as reflecting several international lessons learned and, therefore, also as underpinning
the relevance of this report. Secondly, it describes CICIG’s sui generis hybrid nature and its mandate and powers.
Thirdly, it analyses the ‘rule of law-builders contract’60 between external and internal actors involved in the fight
against impunity in Guatemala and examines the question of local ownership and legitimacy taking into account
local power dynamics. Finally, it addresses the Commission’s main achievements and challenges and provides
recommendations for the international community.
In 2004 the proposal to create CICIACS had been rejected by the Guatemalan Constitutional Court, which
claimed it was unconstitutional, arguing that solely Guatemala’s public prosecutor could exercise prosecutorial
powers.61 This took place during the Portillo administration with his party (the Guatemalan Republican Front
(FRG) under the leadership of ex-military dictator and de facto President Efraín Ríos Montt62) holding the majority
in Congress, where the CICIACS proposal also lacked support, mostly due to political-criminal interests among
some of its members.63 In May 2007 Guatemala’s Constitutional Court ruled that CICIG was compatible with
the constitution, and in August 2007 the Congress ratified the agreement for the establishment of CICIG. The
murder of three Salvadorian members of the Central American Parliament and their driver by senior members
of the Guatemalan police, including the head of the organised crime unit in February 2007,64 triggered the
56 See also the Commission’s website http://cicig.org/index.php?page=home-page.
57 Agreement between the UN and the government of Guatemala for the Establishment of a Commission for the Investigation of Illegal Groups
and Clandestine Security Organizations in Guatemala (CICIACS), 7th January 2004.
58 Agreement between the United Nations and the State of Guatemala on the establishment of an International Commission against Impunity
in Guatemala (CICIG) (CICIG Agreement), 12th December 2006, Art. 1.
59 CICIG (2009a). ‘Two years of work: A commitment to justice. Guatemala City’. p.4. Available at http://cicig.org/uploads/documents/
report_two_years_of_work.pdf.
60 This term draws on the ‘peacebuilder’s contract’, a model developed by Barnett and Zürcher (2009) with the purpose of explaining why
and how external state-building can reinforce weak statehood.
61 Corte de Constitucionalidad, Guatemala, Opinión Consultiva, Expediente No. 1250-2004 [Constitutional Court, Guatemala, file No. 12502004]. p.5. August 2004.
62 Ríos Montt headed a military regime (1982–83) that was responsible for some of the worst atrocities of Guatemala’s internal conflict. Two
Truth Commissions documented widespread human rights abuses during his regime, including widespread massacres, rape, tortures and
acts of genocide against the indigenous population.
63 See also SEDEM (2004). ‘CICIACS: sistematización de un proceso’ [CICICAS: Systematisation of a process]. Guatemala City. Available
at http://www.sedem.org.gt:8080/sedem/publicaciones/libros/cicicacs.pdf.
64 See also WOLA (2007). Op. cit.
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16 • Initiative for peacebuilding
Guatemalan government’s decision to ask the UN for assistance. At the time, the government’s and Guatemalan
civil society’s interests were in accordance with those of the international community.
Lessons Learned Taken into Account by the International
Community
CICIG can be considered an example of good practice in international state-building in so far as it incorporates a
number of lessons learned. International donors supporting CICIG have a common strategic approach including
a relatively clear time horizon and channel the bulk of their efforts to support the rule of law in Guatemala
through the Commission. This, in turn, ensures an unusually high level of donor coordination. Furthermore, it
enables the Guatemalan government and different state institutions to deal with a single interlocutor rather
than with a plethora of donor voices. In addition, CICIG approaches security and justice in a comprehensive way.
These aspects are worth acknowledging as, in the past, donor support in the field of security and justice – mainly
technical assistance, training and equipment – has been characterised by divergent and competing agendas, a
general lack of coordination and piecemeal approach.65,66 It is difficult to evaluate if the lack of coordination in
post-conflict Guatemala has harmed the construction of a legitimate security and justice sector. What is clear,
however, is that effectiveness has been very limited.67 According to Gavigan, ‘early mistakes with the creation of
a new police force and plodding movement on judicial reform, compounded by government indifference, gravely
undermined the two institutions central to the control of organised crime and political-criminal networks, and
they never recovered’.68 The PNC, for example, which was created after the signature of the Peace Accords,
included 50 percent of former police officers without carrying out a substantial vetting process.69
Another important feature is that CICIG is a body explicitly designed for and, even more importantly, out of the
Guatemalan context and not a transferred blueprint.70 The Commission has its roots in Guatemalan civil society,
namely human rights organisations, which is why it is vested with an important degree of domestic ownership and
legitimacy, the central factors determining success in security sector and justice reform, as the lack of local ownership
necessarily leads to dysfunctional outcomes.71 In 1996 Guatemala’s Peace Accords committed the Guatemalan
government to combat illegal security groups and to ‘effectively guarantee and protect the work of human rights
defenders and organizations’.72 The initial proposal to create CICIG was put forward by Guatemala’s Procurador in
2003 to respond to ‘the clamour which has been caused by the assassinations, threats and kidnappings of human
rights defenders’ and other public officials. It also responded to the CEH’s recommendation that the government
adopt ‘legislative measures specifically orientated towards the protection of human rights defenders’.73
Lastly, CICIG’s institutional reform and capacity-building tasks aim at overcoming the problem of temporarily
substituting local capacity instead of building it in sustainable ways contributing to enhanced accountability and
legitimacy. This is also why the Commission’s mandate was initially restricted to two years. The extension of the
mandate for two more years in September 2009, nevertheless, was a reminder that state-building is a long-term
endeavour, and that two years were clearly not enough time for the Commission to even begin to fulfil its mandate.74
State-building efforts through CICIG also face the dilemma that, on the one hand, state-building requires a longterm horizon and donors to make long-term commitments, but that, on the other hand, a prolonged presence of the
international community presents its own problems, which can jeopardise domestic political processes and affect
state–society relations in negative ways75 and create dependency on the international community.
65
66
67
68
69
70
71
72
73
74
75
P. Gavigan (2009). Op. cit. p.63.
Interviews with different stakeholders in Guatemala confirmed this assessment.
Interviews with government and civil society representatives carried out in Guatemala City in October 2009 confirmed this assessment.
P. Gavigan (2009). Op. cit. p.63.
Vetting is a process whereby individuals who lack integrity and who are considered a threat to the state are excluded or removed from
public office and can form part of transitional justice strategies. Vetting is particularly rigorous in the security and justice sectors – as
reforms of these sectors contribute to criminal accountability for past abuses and the prevention of future violations.
See also L. Rakner, A. Rocha Menocal and V. Fritz (2007). ‘Democratisation’s third wave and the challenge of democratic deepening:
Assessing international democracy assistance and lessons learned’, Working paper of the research project of the Advisory Board for Irish
Aid. Available at http://www.odi.org.uk/resources/download/201.pdf.
See also L. Nathan (2007). Op. cit. p.8.
Comprehensive Agreement on Human Rights, 29th March 1994, art VII (3).
CEH (1999). Op. cit., paragraph 41.
In fact, it took the Commission roughly one year to be fully set up.
R. Paris and T. D. Sisk (2009). Op. cit.
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CICIG’s Nature, Mandate and Powers
CICIG is tasked with supporting, strengthening and assisting Guatemalan institutions in identifying,
investigating, prosecuting and ultimately dismantling domestic illegal security apparatuses and clandestine
security organisations.76 The powers of the Commission are related to promoting individual prosecutions and to
institutional reform. They include the authority i) to investigate any person, official or private entity;77 ii) to present
criminal charges to Guatemala’s public prosecutor and to join criminal proceedings as a private prosecutor;78
iii) to name civil servants who commit administrative offences and to participate as a third party in resulting
disciplinary proceedings;79 iv) to recommend public policies and legal and institutional reforms;80 and v) to request
statements, documents and cooperation from any government official or entity.81 However, the Commission lacks
clear enforcement mechanisms or sanctions for non-compliance, which renders the last power especially weak
and underlines its reliance on the cooperation of Guatemalan state institutions.
An important distinct feature of CICIG is its hybrid nature. The Commission operates completely within the
Guatemalan legal system and incorporates international and local staff. It is a hybrid body ‘because it is neither
entirely national nor international and combines the independent investigatory and limited prosecutorial powers
of a tribunal with an ultimate deference to the domestic judicial system characteristics of a commission’.82
CICIG has many of the attributes of an international prosecutor, but it operates under Guatemalan law, in the
Guatemalan courts, using Guatemalan criminal procedure.83 It goes well beyond technical assistance, but it is not
an international tribunal, given that the Commission must refer all of its cases to Guatemalan prosecutors and
can only participate in these cases as a private prosecutor (querellante adhesivo).84
Through this unique setup, CICIG can train local personnel and build capacity by working with local institutions
throughout the whole prosecution process. The rationale is to build local capacity and ultimately state legitimacy
instead of temporarily substituting it, which may even further weaken the state that needs to be strengthened. The
Commission’s hybrid nature, however, implies a complex and continuous exercise of negotiation and cooperation
between international actors and local counterparts.
By the nature of the creation agreement, CICIG is an independent body from the political, organisational and
financial standpoint. In accordance with its mandate, its budget is entirely funded through voluntary contributions
from UN Member States, namely Spain,85 the United States, Sweden, Canada,86 the Netherlands, the European
Commission,87 Italy,88 Norway, Finland, Switzerland, Denmark,89 Germany, Ireland and the United Kingdom.
The UN Development Programme (UNDP) and the Open Society Foundation also support CICIG financially.
The Commission has a budget of approximately US$15 million and as of September 2010 had a staff of 196
national and international civil servants from 24 countries, working as investigators, administrators, administrative
and security personnel.90,91 From September 2007 to June 2010 Carlos Castresana from Spain headed the
Commission; in August 2010 Francisco Dall’Anese from Costa Rica took over.
76
77
78
79
80
81
82
83
84
85
86
87
88
89
90
91
CICIG Agreement, supra note 30, Art. 1.
Ibid., Art. 3, $ 1 (a).
Ibid., Art. 3, $ 1 (b).
Ibid., Art. 3, $$ 1 (d) and 1 (e).
Ibid., Art. 3, $ 1 (c).
Ibid., Art. 3, $ 1 (h).
A. Hudson and A. W. Taylor (2010). ‘The International Commission against Impunity in Guatemala. A new model for international criminal
justice mechanisms’, Journal of International Criminal Justice, Vol. 8, pp.53–74.
CICIG (2009a). Op. cit. p.4.
A querellante adhesivo is equivalent to the action civile in other civil law systems, whereby a third party, often a victim of a criminal offence,
may participate as a civil party in a criminal proceeding to claim damages from such offender. (A. Hudson and A. W. Taylor (2010). Op. cit.
p.55.)
Spain’s financial contribution to CICIG amounts to over €7 million.
In July 2010 Canada committed almost US$1.5 million to CICIG’s budget. Canada’s total financial contribution amounts to US$6.3 million.
The European Commission’s total financial contribution to CICIG amounts to more than €5 million.
Italy’s financial contribution to CICIG amounts to €1.8 million.
In September 2010 Denmark committed US$1 million to CICIG’s budget.
CICIG (2010). Op. cit. p.4.
Among them, 95 (48.5 percent) carry out substantial tasks, while 29 (14.8 percent) fulfil administrative functions, and 72 (36.7 percent)
are responsible for the Commission’s staff security.
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The ‘Rule of Law-builders Contract’
Barnett and Zürcher argue that external state-building can reinforce previously existing state–society relations
and weak statehood.92 In order to explain why peacebuilders often solely transfer ‘the ceremonies and symbols
of the liberal-democratic state’ instead of achieving real transformation in the countries in which they intervene,
they developed a model called the ‘peacebuilder’s contract’. The model assumes three key actors with the
following preferences to be in a situation of ‘strategic interaction’: external peacebuilders who want stability and
liberalisation; state elites who want to maintain their power; and subnational elites who want autonomy from the
state and maintain their power in the countryside.93,94 Under this setting, the ability of each actor to achieve its
goals is dependent on the strategies and behaviours of the other actors. Their strategic interactions will shape
the state- or peacebuilding agenda and, hence, the outcome of the process.95
Applied to the subject of this report, the peacebuilder’s contract can be described as a ‘rule of law-builders
contract’.96 In Guatemala, internal and external ‘rule of law-builders’ are engaged in a “strategic game” to fight
impunity and set the conditions to ensure the rule of law and a culture of respect for human rights. The external
actors are represented by the international community and specific donors engaged with CICIG. The internal
actors are state elites, in particular from the Presidency, the Ministry of Interior97 and agencies therein such
as the PNC and the penitentiary system, the Public Prosecutor’s Office,98 with the public prosecutor being a
key figure, and the Judiciary. In this report, the private sector and organised civil society have been included as
internal actors of the game, given that the buy-in of the former and the power of initiative and bottom-up drive of
the latter seem to be crucial factors in the process.99
Barnett and Zürcher identify four possible scenarios for the ‘peacebuilder’s contract’: cooperative peacebuilding,
compromised peacebuilding, captured peacebuilding and conflictive peacebuilding.100 Cooperative peacebuilding
is likely to be the outcome when external and internal actors completely agree on the agenda and programme.
Compromised peacebuilding means that a negotiation takes place where local elites try to make sure their
interests are safeguarded or at least not seriously threatened. They, nevertheless, accept the legitimacy of
local reforms in return for international support.101 When they don’t and external actors agree to play by their
conditions, the outcome is described as captured peacebuilding and externals become ‘little more than the
agent of local elites’.102 In case external and internal actors are unable to reach a compromise, the situation
has potential for confrontation involving coercive tactics from both sides and most likely the withdrawal of the
international community.
92 M. Barnett and C. Zürcher (2009). Op. cit.
93 Ibid., p.24.
94 Taking into account subnational elites adds complexity to the model. Depending on the specific context, political settlement and centreperiphery relations, subnational elites may be, but are not necessarily, relevant to state-building endeavours. In the case of Guatemala, they
can be neglected in the analysis.
95 The model assumes actors to be unitary, which, depending on the context, can prove problematic. While, in the case of Guatemala and the
CICIG, external actors indeed show a high degree of unity, this is not the case for state elites. This is why this report depicts state elites’
‘actorness’ in the analysis.
96 It is for several reasons that this model is deemed to be of relevance for CICIG. Most importantly, it includes domestic politics.
97 In Guatemala the Ministry of Interior is called Ministerio de Gobernación.
98 In Guatemala the Public Prosecutor’s Office is called Ministerio Público. It was created after a constitutional reform in 1993.
99 Interviews in Guatemala City in October 2009 have confirmed the relevance of these actors.
100 M. Barnett and C. Zürcher (2009). Op. cit. p.33.
101 J. Goodhand and M. Sedra (2006). Afghanistan peace conditionalities study. London: Department for International Development. p.3; M.
Barnett and C. Zürcher (2009). Op. cit. p.33.
102 M. Barnett and C. Zürcher (2009). Op. cit. p.33.
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In this report, it is argued that the case of CICIG is an example for compromised state-building in the field of
the rule of law. Compromised peacebuilding implies that an ongoing negotiation takes place between external
actors and local elites, where both try to make sure that their interests are safeguarded as much as possible,
although showing some flexibility to adjust to the circumstances. The hybrid nature of the Commission and its
dependence on local counterparts in order to fulfil its mandate makes such a negotiation even more inevitable.
External actors aim to reduce impunity; their objective is made explicit in the Commission’s mandate (see previous
section) to strengthen and assist Guatemalan institutions in identifying, investigating, prosecuting and ultimately
dismantling domestic illegal security apparatuses and clandestine security organisations. They also aim for
stability as they can only carry out their work in a relatively stable environment. In principle, state elites also want
to strengthen the rule of law. At least they have formally committed to do so. It was the state of Guatemala that
asked the international community for assistance and signed the agreement with CICIG, which was then ratified
by the Guatemalan Congress. However, state elites cannot be treated as homogenous, and support for CICIG
varies significantly across and within state institutions. State officials with linkages to illegal security structures
have to be considered as spoilers given that CICIG is a threat to them and their interests. As mentioned above,
organised civil society, including the media, strongly supports the Commission, while initially both the traditional
as well as the emerging private-sector elite showed considerable reluctance.
Putting the CICIG in Place
The setup of CICIG began as a bargain: a bargain between the international community and the Guatemalan
state as well as – and even more importantly – a bargain within Guatemalan society: state elites, different factions
of the private sector and organised civil society predominantly with a human rights background. Three executive
branches of the state, each of them with their respective foreign ministers, and two different Congresses and
Constitutional Courts participated in the political decision, negotiation, signature and ratification of the agreement
for the creation of CICIG.103 Guatemala’s private sector can be divided into roughly two different factions: a
traditional elite representing the old oligarchy – often described as the G8 given that eight families sit at its
core104 – and an emerging economic elite. Within both factions, ties to organised crime exist, especially drug
trafficking, contraband, human trafficking and illegal adoptions, as well as money laundering. The governments
Guatemala has had since the Peace Accords in 1996 can be associated with either one or the other faction of
the private sector. While the Arzú (1996–99) as well as the Berger administrations (2004–08) represented the
oligarchy, it was under the Portillo administration (1999–2004) that the emerging private-sector elite gained
influence and control over state institutions.
There were several reasons for reluctance within the traditional private-sector elite. Historically, Guatemala’s
oligarchy has always favoured a weak state to control and exploit the country according to their economic and
political interests.105 Furthermore, CICIG was perceived as foreign interference, lacking legitimacy, and, therefore,
a threat to national sovereignty. Scepticism was also due to Guatemalan’s experience with the UN Verification
Mission in Guatemala (MINUGUA),106 which had successfully brokered the signature of the Peace Accords in
1996 but which had been much less effective in helping to forge the necessary consensus and political drive
for their implementation. In addition, impunity had historically been instrumental to corruption and maintaining
control over the state. The oligarchy had the means to contain whatever would threaten that control – such as
the guerrillas during the conflict – and ensure their own security through their own means. The fact that CICIG
was essentially a proposal developed and backed by Guatemala’s organised civil society who claimed justice
and the respect of human rights also generated ideological resentment among the conservative oligarchy.107,108
Many were sceptical of an alliance between a “leftist” perceived civil society and the international community.109
103 CICIG (2009a). Op. cit. p.3.
104 These families are the inheritors of Guatemala’s colonial past (1523–1821), whose accumulation of capital was based on the agrarian
exploitation of the country. Today, its representatives are mainly present in the following sectors of the economy and private-sector
associations: Banco Industrial, S.A.; Cementos Progreso (cement industry); Asociación de Ganaderos (livestock breeding); Asociación
de Azucareros (sugar producers); Asociación de Agricultores (agriculture); Asociaciones Bancaria, de Seguros y Finanzas (banking and
financial services); and Asociaciones de Servicios Comerciales y Turísticos (commercial services and tourism).
105 (ICG) (2010). Op. cit. p.2; UNDP (2006). Op. cit.
106 SEDEM (2004). Op. cit. p.36.
107 Assessment also based on personal interviews carried out by the author with civil society representatives in Guatemala City in October
2009.
108 See also SEDEM (2004). Op. cit. p.37.
109 Based on an interview with a Guatemalan civil society representative.
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The Commission, therefore, had to negotiate with the traditional faction of the private sector, which were sceptical
towards CICIG and its legitimacy. This was at least partly also due to the fact that organised crime was not yet
perceived as a threat to the Guatemalan state. However, during the last decade, the traditional private sector
has been losing control over the state, especially during the Portillo administration, when for the first time the
emerging elite was in control of the government. Given the resources at their disposal, Guatemala’s oligarchy
had so far been able to interfere in governance and to control the state. The emergence of organised crime as a
political actor and competitor to control and ultimately capture the state radically changed this situation. This new
situation triggered incentives to accept and negotiate with an institution such as CICIG. It appears that elite buyin for strengthening the rule of law in Guatemala is essentially motivated by fear and the perception of organised
crime as an “ungovernable” threat for Guatemala’s elite.110 The country might well be at a turning point in the sense
that a perception is emerging that transnational organised crime is a common threat to all citizens of all factions
of Guatemala’s society, regardless of how influential they are. Threats, and more precisely common threats, can
operate as an integrative force.111 In the case of Guatemala, organised crime is both an external and an internal
threat. A further deterioration of the security situation is not in the interests of the economic elite, which might be at
least one of the reasons why they ultimately agreed to bargain over ways to strengthen the state, and specifically
the rule of law in Guatemala. CICIG is the outcome of this bargain. The bottom line comes down to either buying
in to building a stronger state or to irretrievably losing ground over the future of Guatemala. In the bargaining with
CICIG, however, the oligarchy – Guatemala’s “nouveau riche” who had been politically empowered by the Portillo
administration – needed to make sure that the Commission would not represent too much of a threat to their own
interests and would investigate criminal activities of their political and economic adversaries.
While there was scepticism towards CICIG among the traditional elite, the so-called emerging elite was openly
rejecting it. This was already visible in 2004 when FRG party members expressed strong opposition against
the CICIACS proposal in the Guatemalan Congress. Given existing ties between political and criminal actors
and with impunity being instrumental to their interests and illicit activities, there was obviously reluctance to
being exposed to internationally backed investigation and potential prosecution. One interview partner described
CICIG as a ‘lethal risk’ for the prevailing business system in Guatemala.112 Among the military, on the other hand,
concerns prevailed that CICIG could investigate crimes of the past, especially crimes against humanity.
CICIG’s Selection of Paradigmatic Cases and Private-sector
Elite’s Interests
Once the Commission was formally in place, it was necessary to decide on a concrete agenda of investigation
and establish ways of collaboration with the local institutions. With regards to the selection of cases, the main
formal criteria to determine if a case enters CICIG’s mandate or not are as follows: the likelihood of links with
illegal groups and clandestine security organisations; the short- and long-term political impact of the case
on the fight against impunity; and the probability of success in advancing the case in the criminal process.113
Nevertheless, the selection of cases can also be described as the outcome of a political bargain. CICIG selected
eight paradigmatic cases that would be at the centre of its investigations.114 Up to a certain point, these cases
reflect the balance of power in Guatemala and the interests of different agents that hold that power. Each case
potentially affects the interests of one of the described factions of the private sector and, more importantly, their
links to illegal security apparatuses, clandestine security organisations and organised crime.
Investigations in the case of former President Portillo,115 extradited from Mexico to Guatemala on 7 October
2008 on charges of embezzlement of approximately US$15 million in 2003,116 for example, are sensitive for
the emerging private-sector elite. The same is true for the investigation of Arévalo Lacs,117 who served as
110 Assessment based on interviews in Guatemala City in October 2010.
111 See J. DiJohn (2010). ‘State resilience against the odds: An analytical narrative on the construction and maintenance of political order in
Zambia since 1960’, Working Paper no. 75, Development as State-making series. London: Crisis States Research Centre. p.18.
112 Interview with a former Guatemalan government representative who had been involved in the process of setting up CICIG.
113 CICIG (2009a). Op. cit. p.12.
114 See overview and description on CICIG’s website: http://cicig.org/index.php?page=cases.
115 Case No. 7102-2001, 5th Criminal Court, 2nd Official.
116 See press release from the US Prosecutor’s Office on the accusation against Alfonso Portillo. Available at http://cicig.org/uploads/
documents/Portillo_Alfonso_Indictment_PR.pdf.
117 Case No. 01074-2009-01245, 8th Criminal Court, 4th Official.
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Minister of Defence and Minister of the Interior during Portillo’s administration. Lacs is accused of having
participated in the embezzlement of funds from the Ministry of Defence between 2002 and 2003. Guatemalan
authorities captured former President Portillo on 26 January 2010.118 In a TV interview after the capture, CICIG’s
Commissioner Castresana claimed: ‘The problem is that, in Guatemala, criminal organisations had never been
confronted. CICIG is doing it, but so is the Prosecutor General’s Office and the Judiciary. Let’s say it: we are
looking the monster in the face, we are holding its gaze, and it is reacting.’ In March 2010 a Guatemalan criminal
court authorised Portillo’s extradition to the United States, where he faces money-laundering charges. Some
critical voices in and outside Guatemala raised concern that the Commission was overly reliant on political
alliances, and that the selection of cases and investigations was subject to biases protecting the interests of
the traditional Guatemalan oligarchy, concentrating too heavily on the Portillo case and its ramifications, and
making the release of completed investigations conditional upon political considerations.119 As a consequence,
the Commission would not be fulfilling its mandate to dismantle clandestine security structures inside the state.
According to some sources, some of CICIG’s international investigators even resigned out of frustration that, in
some investigated cases, substantial evidence did not lead to further actions.120 Barnett and Zürcher’s research121
might shed light on these kinds of situations, where peacebuilders have to adjust their policies and adapt their
strategies taking into account their dependence on state elites. These adjustments and adaptations are likely to
incorporate their preferences for arrangements that safeguard their fundamental interests.
However, CICIG does investigate cases that are potentially sensitive to the interests of Guatemala’s oligarchy, for
example, former public prosecutor Alvaro Matus,122 who has been charged with abuse of authority and dereliction
of duties for obstructing the investigation of Victor Rivera’s murder. Rivera, an adviser to the Ministry of the Interior
and in charge of the anti-kidnapping commando during President Berger’s government, was murdered on 7 April
2008. As the former head of the Public Prosecutor’s Office’s Crimes against Life Unit, Matus was in charge of
the investigation of the case. Another example is CICIG’s investigations regarding a number of high-ranking
security officials of the Berger administration. In August 2010 a Guatemalan court issued arrest warrants for 19
officials. According to a CICIG statement, all 19 suspects were part of a criminal organisation articulated from
the Ministry of Interior and the PNC since 2004, dedicated to extrajudicial executions.123 According to CICIG,
this organisation ‘carried out a continuous criminal activity involving killings, drug trafficking, money laundering,
kidnappings, extortions and drug robberies, among others’.
Rather spontaneously, CICIG took on board the case of the murder of well-known attorney Rodrigo Rosenberg
in May 2010, which in the end turned out to be suicide. Even though links with illegal groups and clandestine
security organisations were unlikely, CICIG investigated the case. This decision was principally motivated by the
need to contain the acute risk of a severe political crisis in Guatemala, given that the day after the murder the
capital erupted in protest calling for the impeachment of the President of the Republic, Álvaro Colom, while the
president denied any involvement. Before his death, Rosenberg recorded a video in which he stated that, if the
recording were made public, it would mean he was already dead.124 He claimed Colom, and his wife, Sandra Torres
Colom, businessman Gregorio Valdez and the president’s private secretary, Gustavo Alejos, were responsible for his
murder.125 Interlocutors interviewed for this report unanimously agreed that CICIG’s presence during the Rosenberg
crisis was vital to guarantee political stability. This, in turn, strengthened the support for CICIG and increased its
legitimacy among public opinion. CICIG gained credibility as a neutral referee in an extremely polarised climate.
118 See also http://cicig.org/index.php?page=public-prosecutor-s-office-and-cicig-press-conference-on-the-arrest-of-former-president-alfonsoportillo.
119 Assessment based on interviews in Guatemala City in October 2010 and in Brussels and Madrid in June 2010. See also ‘Guatemala,
la “bodega” del “narco”’, FP en español, July/August 2010. Available at http://www.fp-es.org/guatemala-la-bodega-del-narco; ‘Strains
in Guatemala’s Experimental Justice System’, New York Times, 3rd July 2010. Available at http://www.nytimes.com/2010/07/04/world/
americas/04guatemala.html; ‘Fiscala critica a Castresana y duda de labor de Dall’Anese’, La Nación. Available at http://www.nacion.
com/2010-08-04/Sucesos/NotasSecundarias/Sucesos2471240.aspx.
120 See also ‘Guatemala, la “bodega” del “narco”’, FP en español, July/August 2010. Available at http://www.fp-es.org/guatemala-la-bodegadel-narco.
121 M. Barnett and C. Zürcher (2009). Op. cit. p.23.
122 Case No. 01079-2009-00211, 8th Criminal Court, 1st Official.
123 http://cicig.org/index.php?page=conferencia-de-prensa-caso-rivera.
124 See video recorded by Rodrigo Rosenberg prior to his assassination. Available at http://www.youtube.com/watch?v=VxZptUp9a44.
125 He added that the cause of his death would be that he had been the attorney for businessman Khalil Musa and his daughter, Marjorie Musa,
who were murdered in Guatemala City on 14th April 2009; he stated that he was investigating these murders. In the video, Rosenberg
also referred to corruption in the Banrural Bank and the National Coffee Association (Anacafé) and to illegal activities carried out to fund
the First Lady’s projects, in which Gustavo Alejos, Gregorio Valdez and phantom companies were used for money laundering and other
criminal activities.
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In January 2010 CICIG concluded that Rosenberg had in fact planned his own death for a number of personal
reasons.126 He had faked his own extortion, hired hit men to kill the supposed extortionist and then posed as the
extortionist with the help of two family members and multiple cell phones. No connection to President Colom
or his secretary was found. In July 2010 a Guatemalan court sentenced the nine Rosenberg murderers.127
In September 2010 President Colom said in a public statement that CICIG had preserved the rule of law in
Guatemala, and that without the Commission the Rosenberg case could not have been resolved.128 While
CICIG’s importance to maintain stability during the Rosenberg crisis is unquestioned, its high-profile approach
also indicates a potential shortcoming. The Commission, the foreign investigative units and the Commissioner
itself seem to have ended up with the bulk of the credit for the quick and successful resolution of the murder,
and not the local justice system.129
State Elites: CICIG’s Dependency on Guatemalan Institutions
Concerning state elites, one of CICIG’s most important domestic counterparts is the Ministry of Interior,130 with
which the quality of cooperation has been highly erratic. As stated in CICIG’s two-year report, ‘subsequent
ministerial appointments and constant turnover among high-ranking National Civilian Police officials have made it
difficult to design and implement medium and long-term security plans despite their extreme necessity’.131 In less
than two and a half years, there have been five ministers in place;132 two of them – Salvador Gándara and Raúl
Velásquez – are currently accused of embezzlement.133 The number of cases of organised crime investigated by
the Commission that involved high-ranking officials from the Ministry and the NPC further hindered cooperation
and the building up of a trust-based relationship.134 With the first two ministers, the Commission was able to
establish fruitful collaboration135 and proceeded to vet 1,700 corrupt policemen including 50 commissioners, the
director general and subdirector general of the NPC. Other police officers – whose backgrounds were checked
and who received constant training – were incorporated into CICIG’s activities.136 Nevertheless, cooperation
suffered serious setbacks when Gándara took over as Minister of Interior in July 2009, and the vetting process,
for example, had to be put on hold. It can be assumed that CICIG exerted significant pressure on President
Colom to remove Gándara from the post.
According to CICIG’s two-year report,137 coordination with the Public Prosecutor’s Office worked reasonably
well, and a bilateral cooperation agreement was signed in February 2008. Following the appointment of
Amílcar Velázquez Zárate as attorney general in August 2008, in September 2008 it was possible to install
the Special Prosecutor’s Office for CICIG (UEFAC) in the Public Prosecutor’s Office. The office is made up
of prosecutors, investigators and 20 police officers vetted and trained by CICIG and works side by side with
CICIG’s professionals in constructing investigations and prosecutions. One recent initiative of UEFAC was the
creation of a Communications Monitoring Centre for wiretapping and intercepting communications related to
organised crime.
In July 2008 CICIG initiated the training of 30 police officers in criminology and police investigation methods.
Officers who passed final exams – 20 in total – were assigned to the Public Prosecutor’s Office to carry out
investigation activities and provide security and protection to public prosecutors; to CICIG headquarters to
126 http://cicig.org/index.php?page=conferencia-prensa-caso-Rosenberg.
127 http://cicig.org/index.php?page=se-dicta-sentencia-en-caso-rosenberg.
128 See ‘Colom asegura que la Cicig ha “preservado el Estado de derecho”’, Prensa Libre, 9th September 2010. Available at http://www.
prensalibre.cr/pl/internacional/31850-colom-asegura-que-la-cicig-ha-qpreservado-el-estado-de-derechoq-.html.
129 (ICG) (2010). Op. cit. p.21.
130The cooperation between CICIG and the Ministry of Interior is based on a bilateral agreement signed on 27th February 2008, which,
among other things, led to the creation of the Special Prosecutor’s Office for CICIG (UEFAC).
131 CICIG (2009a). Op. cit. p.8. See also CICIG (2010). Op. cit. p.6.
132 These are Vinicio Gómez (killed in a helicopter crash in July 2008), Francisco Jiménez, Salvador Gándara, Raúl Velásquez and Carlos
Menocal (since March 2010).
133 El Periódico, CICIG presenta denuncia contra Salvador Gándara por peculado [CICIG denounces Salvador Gándara for embezzlement],
16th March 2010, Guatemala City; El Periódico, Destituyen a Raúl Velásquez del ministerio de Gobernación, Carlos Menocal lo sustituye
[Raúl Velásquez is removed from the Ministry of Interior, Carlos Menocal substitutes him], 1st March 2010, Guatemala City.
134CICIG (2010). Op. cit. p.6.
135 Assessment based on an interview with then Commissioner Carlos Castresana in Guatemala City, October 2009.
136CICIG (2009a). Op. cit. p.8.
137 Ibid., pp.8–9.
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perform security and protection functions for the police investigators; and to provide logistical support and security
and coordination services, and act as police liaisons for CICIG’s investigators in their operational functions. A
problematic aspect of the special unit is existing inequalities between international and local investigators. As
a recent ICG report states: ‘CICIG investigators move in armoured cars with armed bodyguards. Most have left
their families in their home countries while they do their dangerous work. Their underfunded partners live a very
different reality, with families in Guatemala and their identities well known. Local employees lack the same legal
as well as physical protection of UN-contract workers. The differences have been exacerbated by the lack of
trust that often exists between the foreigners and Guatemalans. Information is compartmentalised, especially
in investigations involving the police. This affects cooperation with the government and could make results
ephemeral, especially if the CICIG cannot train its Guatemalan counterparts effectively.’138
Already in late 2009 CICIG representatives stated that support from the government was vanishing, and that
the government was too weak to effectively support the work of the Commission. Its weakness was not purely
because it did not have a parliamentary majority but also because of pressures the party exerted on President
Colom, such as in the case of the appointment of Gándara as Minister of Interior. Tensions between CICIG and
the government reached a climax when President Colom appointed Conrado Reyes as attorney general in May
2010. At the beginning of June 2010 Commissioner Castresana resigned from his role (see also next section)
stating that the agreement creating the CICIG was bilateral, between the UN and the state of Guatemala, and
that the state of Guatemala was not complying with its part of the agreement. He criticised the lack of political
will to pass inalienable legislation to fight impunity and claimed that the justice and security system did not
receive the necessary funds to implement measures such as building a high-security prison, creating highrisk tribunals, duplicating the number of prosecution investigators at the Public Prosecutor’s Office, purchasing
armoured vehicles for judges, etc.139 Drawing on Barnett and Zürcher’s work,140 Castresana’s demission can be
interpreted as a moment of conflict in the ongoing negotiation of the ‘rule of law-builders contract’ in Guatemala,
which in principle can be described as compromised rule of law-building.
On the other hand, CICIG continued to receive sustained support from the media and most importantly from
organised civil society. The Rosenberg case, and the political crisis fuelled by it, further boosted this support,
and the local media has played a key role both in disseminating the Commission’s findings and spreading its
message that it is possible to fight impunity in Guatemala.
In accordance with its mandate, CICIG has also formulated two comprehensive packages of legislative reform
proposals seeking to improve the legal and institutional framework for the criminal prosecution and conviction
of members of illegal groups and clandestine organisations within the state. The proposals were made for the
strategic purpose of eradicating criminal structures by improving the conditions for effective investigations;
enhancing the likelihood of securing an indictment; increasing the availability of technical evidence; enhancing
the likelihood of conviction; creating conditions for speedy trials; and improving conditions for trials to proceed
without interference.141 So far four of the Commission’s proposals have been adopted: the Law on Arms and
Ammunition;142 the Law to Strengthen Criminal Prosecution;143 the Law on Criminal Jurisdiction in High-Risk
138ICG (2010). Op. cit. p.21.
139See press conference on Castresana’s demission. Available at http://cicig.org/index.php?page=renuncia-del-comisionado---conferenciade-prensa; see also ‘CICIG: Guatemala is dying’, Guatemala Times, 15th January 2010. Available at: http://www.guatemala-times.com/
news/guatemala/1332-cicig-guatemala-is-dying.html.
140M. Barnett and C. Zürcher (2009). Op. cit.
141 The first package, submitted in October 2008, includes proposals on modifications regarding the Law on Arms and Ammunition; the Law
on Amparo, Habeas Corpus and Constitutionality; amendments in respect to the Law on Immunities of Public Officials; reforms regarding
the use of pleas in criminal proceedings; the use of audiovisual means in witness and expert testimony; and reforms in respect to the
relocation and change of identity of witnesses and collaborators in criminal proceedings. The second reform package contains proposals
with regards to the Law on Criminal Jurisdiction in High-Risk Proceedings; reforms to the Law against Organised Crime in relation to the
effective collaboration of defendant-informants; amendments to the Law on Amparo, Habeas Corpus and Constitutionality; amendments
to the Law on Immunities of Public Officials; reforms to the Law on Arms and Ammunition regarding the illegal trafficking in arms and
ammunition; reforms to the Criminal Code and the Law against Organised Crime in relation to anti-corruption matters; reforms to the
Criminal Code, the Law against Organised Crime and the Immigration Law with regard to human trafficking and illicit trafficking in migrants;
reforms to various laws with regard to disciplinary measures in the criminal justice system; the Law on International Legal Assistance and
reforms to the Law on Extradition Procedures.
142 Decree No. 15-2009.
143 Decree No. 17-2009.
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24 • Initiative for peacebuilding
Proceedings;144 and reforms to the Law against Organised Crime145 specifically with regard to defendantinformants. Although cooperation between CICIG and the Congress in principle has been described as fruitful,146
during 2010 tensions rose regarding the outstanding legislative reforms. When Commissioner Castresana
resigned, he accused the Guatemalan Congress of lacking the political will to advance pending reforms. In a
press interview, Helen Mack, a well-known Guatemalan human rights activist and designated Commissioner
for police reform, said it seemed as though members of Congress had intentionally delayed the passing of the
requested laws and that the government’s rejection of the proposals of CICIG reflected the ‘involvement of many
people in illegal networks’.147
Getting into Domestic Politics: CICIG’s Public “Vetos”
Although CICIG is an independent body from a political, organisational and financial standpoint, it has sought
to play a political role on several occasions, in some cases less discreetly than others. This kind of interference
can mainly be explained by its reliance on Guatemalan institutions to fulfil its mandate.148 In September 2009
Commissioner Castresana intervened publicly to comment on the suitability of elected judges to integrate into
the Supreme Court of Justice and the Court of Appeal. In May 2010 he publicly expressed the Commission’s
objection to the government’s appointment of Conrado Reyes as attorney general. According to CICIG, Reyes
had links to organised crime and had been undermining the Commission’s investigations, for example through
the removal of prosecutors and investigators working with CICIG.149
In Guatemala, every five years Congress selects the judges of the Supreme Court from a list submitted by the bar
association, law school deans, a university director and appellate judges. According to CICIG’s analysis,150 this
selection process hinders the existence of independent and impartial judges who enter the Judiciary based on
professional merit. On the contrary, it encourages judges to compete for political support in order to get elected
or maintain their posts. The process makes the system vulnerable to the corporate interests of those who seek to
ensure the Judiciary functions according to their interests. This, in turn, leads to impunity. According to CICIG,151
the practice of negotiating judges’ posts has been in place for a long time in Guatemala. In this context, the UN
Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Carina Knaul de Albuquerque e Silva,
stated in a press release that ‘the recent election of Judges for the Supreme Court of Justice of Guatemala
ignored the principles of transparency, objectivity and suitability that are crucial in this type of process’.152
In September 2009 CICIG singled out and named eight judges who were up for selection as unsuitable, given
their involvement in illicit activities, such as illegal adoptions and drug trafficking. Finally, the Guatemalan Congress
elected nine Supreme Court judges including six of the eight that had been “vetoed” by CICIG. This decision
provoked generalised rejection across various sectors of Guatemalan society. Subsequently, the Constitutional
Court ruled that the selection of judges needed to be revised given reasonable doubts about some of the
judges’ honesty and respectability. On this basis, the Guatemalan Congress fixed a period of time to receive
relevant documentation on the respective judges and their suitability. On 7th October the Congress voted again
and substituted three of the formerly elected Supreme Court judges on the basis of the evidence they had
received,153 which was subsequently forwarded to the Ministry of Interior.154
144Decree No. 21-2009.
145 Decree No. 23-2009.
146CICIG (2009a). Op. cit. p.19.
147 See ‘CICIG: Guatemala is dying’, Guatemala Times, 15th January 2010. Available at: http://www.guatemala-times.com/news/
guatemala/1332-cicig-guatemala-is-dying.html.
148See also CICIG (2009b). ‘Informe proceso de elección de magistrados a la Corte Suprema de Justicia y Cortes de Apelaciones y otros
tribunales colegiados de igual categoría. Resumen ejecutivo’ [Executive summary of report on election process of judges]. Guatemala City.
p.2. Available at http://cicig.org/uploads/documents/Resumen_Ejecutivo_Informe_Proceso_de_Eleccion_de_Magistrados_anio_2009.
pdf.
149See ‘Strains in Guatemala’s experimental justice system’, New York Times, 3rd July 2010. Available at http://www.nytimes.com/2010/07/04/
world/americas/04guatemala.html.
150CICIG (2009b). Op. cit.
151 Ibid., p.6.
152 See statement available at http://cicig.org/uploads/documents/Comunicado%20Relatora%20Eleccion%20CSJ%20(5oct09).pdf.
153 CICIG (2009b). Op. cit. p.5.
154A similar procedure took place with regards to the election of judges for the Court of Appeal, when CICIG objected to 20 candidates which
were finally excluded from the list. See CICIG (2009a). Op. cit. p.5.
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The appointment of Conrado Reyes as attorney general in May 2010 by President Colom, and the general lack
of progress from the Guatemalan government in instituting judicial reforms, ultimately led to Commissioner
Castresana’s resignation on 7th June. Castresana accused Reyes of having links with illicit organisations and
urged President Colom to dismiss him.155 He also said the nomination of Reyes had been the result of a pact
among lawyers who are part of organised crime. On 11th June Guatemala’s Constitutional Court annulled the
selection of Reyes on procedural grounds.156 According to confidential information,157 the Court urged President
Colom to make a joint declaration, which the president nevertheless rejected.
Both actions constitute interference by the Commission into Guatemalan internal affairs and a process to be
scrutinised by Guatemalan society. CICIG, therefore, became a political actor. Tensions between the Commission
and the government were inevitable, and some civil society representatives considered that Commissioner
Castresana had effectively gone too far.158 The Commission not only gave voice to civil society’s concerns, but
also – by “vetoing” some of the elected judges – pursued its very own interest: the fulfilment of its mandate to
fight impunity in Guatemala. This underlines once more that security and judicial reform are inherently political
in nature.159 Nathan acknowledges that security sector reform (SSR) focuses on the most sensitive sector of
the state as it ‘challenges power relations, vested interests and dominant paradigms’ and can therefore ‘provoke
significant contestation within the state and between the state and other actors’.160 This is equally true for judicial
reform. The degree to which such reform is realisable in a given country also significantly depends on the political
leadership and the capacity to implement reforms.161 The third-year report on CICIG’s work highlights precisely
these aspects stating that ultimately the success of any international initiative like CICIG relies on the existence
of real political will and commitment on the side of the ‘recipient state’, which needs to implement a series of
complementary measures, such as institutional reform, the elimination of legislative barriers and, in general, the
implementation of recommendations and good practice.162
A trend towards conflictive dynamics in the ‘rule of law-builders contract’ was evident among the emerging
faction of the private sector after the capture of former President Portillo in January 2010. An aggressive media
campaign to damage the reputation of CICIG and the Commissioner – including using his private life – was
implemented in Guatemala.163 In a public statement, Castresana said that the drivers of the campaign were
criminal networks, which, since the establishment of CICIG, had lost power and influence inside the Ministry of
Interior, the Judiciary, the Prosecutor’s Office and the penitentiary system. He claimed that, ‘for the first time,
in the history of Guatemala, the CICIG touches the untouchables, accuses and detains persons that so far had
stood above the law’.164
155 http://cicig.org/index.php?page=renuncia-del-comisionado---conferencia-de-prensa.
156See also ‘Guatemalan attorney general sacked’, BBC, 11th June 2010. Available at http://www.bbc.co.uk/news/10299442.
157 Obtained in a personal interview undertaken by the author in August 2010.
158Based on interviews with Guatemalan civil society representatives in October 2009, Guatemala City.
159See also L. Nathan (2007). Op. cit.; L. Rakner, A. Rocha Menocal and V. Fritz (2007). Op. cit.
160L. Nathan (2007). Op. cit. p.13
161 Cf. Ibid., p.17.
162 CICIG (2010). Op. cit. p.16.
163 See ‘Carlos Castresana, UN Commissioner against Impunity in Guatemala resigns’, Guatemala Times, 8th June 2010. Available at http://
www.guatemala-times.com/news/guatemala/1656-carlos-castresana-un-commissioner-against-impunity-in-guatemala-resigns.html.
164http://cicig.org/index.php?page=se-dicta-sentencia-en-caso-rosenberg.
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Conclusions and Recommendations
CICIG is unique in its setup as well as in its mandate. Based on an agreement between the state of Guatemala and
the UN Secretary-General from 2006, its mandate is to support, strengthen and assist Guatemalan institutions
in identifying, investigating, prosecuting and ultimately dismantling domestic illegal security apparatuses and
clandestine security organisations. Such a mandate is unprecedented among UN or other international efforts to
strengthen the rule of law. The Commission is a hybrid body; it is neither entirely national nor international. It has
independent investigative but limited prosecutorial powers and can only join cases as a private prosecutor. Limited
prosecutorial powers necessarily imply limited prosecutorial successes. CICIG operates under Guatemalan law, in
the Guatemalan courts, using Guatemalan criminal procedure. The Commission’s local institutional counterparts
are the Ministry of Interior, the PNC and the penitentiary system, the Public Prosecutor’s Office and the Judiciary.
The Commission operates in the context of a protracted conflict. Fourteen years after the signature of the Peace
Accords in 1996 that put an end to the internal armed conflict, Guatemala faces a dual crisis of security and
legitimacy. The country is one of the most violent in the world, and levels of impunity amount to over 99 percent
(2009). State institutions are weak and permeated by criminal structures and, therefore, unable to stall rampant
levels of violence, crime and insecurity. The Guatemalan state does not provide its citizens with security nor does
it hold the legitimate monopoly of violence within its territory or ensure the rule of law within its society.
The case of CICIG is an example of “compromised state-building” in the field of the rule of law. External and
internal actors – the international community and local state and private-sector elites in an ongoing negotiation
– set the rule of law-building agenda. In this process, both try to safeguard their interests and objectives as much
as possible. The need for negotiation is reinforced by the hybrid nature of CICIG and its reliance on effective
collaboration from its Guatemalan counterparts. In the past, this ongoing bargain became manifest in the political
struggle about CICIG’s very creation, the selection of cases, cooperation with the Guatemalan state institutions,
the election of judges for the Supreme Court as well as the appointment of Guatemala’s attorney general.
This section summarises the Commission’s main achievements and challenges for the future. It also provides
recommendations for Guatemalan state actors on how to strengthen the rule of law in Guatemala and for
the international community on how to best continue to support this process. The question of whether the
experience of CICIG could constitute a model for other countries facing comparable dynamics of violence, crime
and impunity is also addressed.
Main Achievements and Challenges
It is still too early to make a full and just assessment of the achievements of CICIG. However, three years after it
was set up in September 2007 and approximately two and a half years after the Commission effectively started
working, it is possible to draw some conclusions on its achievements and outline its main challenges for the future.
One way to assess CICIG’s achievements to date is to ask where Guatemala would possibly stand today without
the Commission. It is highly unlikely that the Rosenberg case could have been resolved with the attorney’s
murderers being sentenced within little more than a year. People interviewed for this report all agreed that the
presence of CICIG and the takeover of the case prevented Guatemala from running into a severe political crisis
and a potential coup d’état. Likewise, the capture of former President Portillo as well as several captures related
to the murder of Victor Rivera and extrajudicial executions committed by several high-ranking officials of the
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Berger administration would have been impossible without CICIG.165 Critical voices argue that, although the
Commission’s investigations in the Rosenberg and Portillo case, for example, are a success, these cases are not
necessarily linked to the illegal security apparatuses and clandestine security organisations CICIG was designed
to dismantle.166 It is true that CICIG invested tremendous resources in the investigation of the Rosenberg case,
and that the motivation to take the case on board was rooted in the need to safeguard Guatemala’s political
stability more than its aim to dismantle illegal security structures. In the case of Portillo, however, the recent
captures in the Rivera case and investigations of the former high-ranking security and justice officials of the
Berger administration are an indicator that the Commission and its Guatemalan counterparts are effectively
starting to get to the bottom of illegal security structures operating inside the state institutions. Without the
admittedly controversial interventions of the Commission into the election of Supreme Court judges and the
country’s attorney general, today’s Supreme Court would be infiltrated by corrupt judges, and Guatemala would
no doubt have a person with links to organised crime (i.e. a spoiler) heading the Public Prosecutor’s Office.
CICIG is a platform established to attack impunity and the state’s infiltration by criminal structures: an icebreaker.
Prior to CICIG, there was no institution through which this could have been done, precisely due to the level
of infiltration. Nonetheless, it is important to highlight that the Commission has made the Guatemalan justice
system work. It has proven that justice is possible in Guatemala, applying Guatemalan law, in Guatemalan courts,
using Guatemalan criminal procedure. The Guatemalan judicial system was successfully used to detain and
prosecute high-profile individuals; it has been proven that no one is above the law and exempt from prosecution.
This is what is widely called CICIG’s ‘demonstration effect’. These successes have essentially been possible due
to the efficiency of UEFAC located within the Public Prosecutor’s Office.
With regards to the depuration of institutions from infiltrated criminal structures, progress has been made through
the vetting of almost 2,000 corrupt police officers equating to 15 percent of the staff including high- and maximumranking officials. Concerning proposals for legislative reform, 4 out of 14 have been adopted by the Congress,
among which the Law to Strengthen Criminal Prosecution is considered a priority. Specifically, the law provides
legal benefits for members of criminal organisations who give information regarding their ringleaders, establishes
the right of certain witnesses to give testimony through videoconference and increases the penalties for extortion
and for temporary kidnappings. Debates in Congress on a reform of the Law on Arms and Ammunition had been
going on for more than 10 years. Congress also adopted the Law on Criminal Jurisdiction in High-Risk Proceedings
and reforms to the Law against Organised Crime specifically with regard to defendant-informants.
CICIG’s hybrid character is both its greatest virtue and its Achilles’ heel. On the one hand, it ensures local
ownership and legitimacy and sets the conditions for the building of local capacity instead of the temporary
substitution through international presence. On the other hand, it significantly limits the Commission’s scope for
manoeuvre as it lacks independent prosecutorial powers and relies on the judicial system’s willingness to admit
it as a party to any criminal proceedings. Ultimately, the most important factor for determining CICIG’s success
is the level and quality of collaboration from the Guatemalan state institutions. The latter has been erratic
throughout the last two and a half years, especially when it comes to the Ministry of Interior and the PNC, but
also the Presidency, the Judiciary and the Guatemalan Congress. There is a need for sustained commitment and
leadership to fight impunity in Guatemala. The PNC needs to be reformed; the creation of a special investigations
unit with a minimum of 150 investigators and exclusive dedication to combat impunity is highly recommended.
Likewise, a reform of the penitentiary system is necessary, including the construction of a maximum-security
prison. There must be progress in the vetting of corrupt judges. Furthermore, the president must appoint a
capable and decent attorney general. The fact that Guatemala will conduct presidential elections in August 2011
is likely to undermine these needs, as much of the political energy will be absorbed in the struggle for votes and
the forging of political as well as politico-criminal alliances.
Sustainability – achieving a lasting effect on the Guatemalan justice system – is the greatest challenge for
CICIG,167 namely, whether the Commission will have created enough capacity within the Guatemalan state, and
165 For a complete overview of CICIG’s substantial work, see CICIG’s three-year report (CICIG, 2010).
166See also ‘Guatemala, la “bodega” del “narco”’, FP en español, July/August 2010. Available at http://www.fp-es.org/guatemala-labodega-del-narco; ‘Strains in Guatemala’s experimental justice system’, New York Times, 3rd July 2010. Available at http://www.nytimes.
com/2010/07/04/world/americas/04guatemala.html.
167 Interview partners, regardless of their background, unanimously agreed on this.
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28 • Initiative for peacebuilding
whether institutions will be resilient against infiltration by criminal networks. In this regard, the UEFAC can be
considered a laboratory, a “healthy” unit within an institution infiltrated by criminal structures. The crucial question
is how realistic is it that a nucleus of trained personnel can not only survive in a largely dysfunctional structure,
but also continue to trigger institutional change within the Ministry of Interior beyond CICIG’s mandate. The
appointment of Reyes as attorney general in May 2010 revealed how fragile such achievements are. A single
person can ruin the work of years in a matter of days by removing capable and committed individuals from their
posts. Without the pressure exerted by CICIG in representation of the international community, it seems likely
that Reyes would have kept his post. Following Commissioner Castresana’s resignation, several civil society
organisations, such as Foro Guatemala and Grupo de Apoyo Mutuo, demonstrated in front of the Presidential
Palace demanding Reyes’ dismissal.168 Once more, CICIG was an ally for civil society’s struggle against impunity.
The UEFAC constitutes a new and effective model of institutional capacity-building, which needs to be further
completed and strengthened in order to generate sustainable capacity within the Ministry of Interior and to be
operational beyond CICIG’s mandate.
Furthermore, there is the financial aspect to sustainability. Funding arrangements in post-conflict settings are
frequently short term and poorly integrated.169 As harshly criticised by former CICIG Commissioner Castresana,
the latest budgetary provisions of the Guatemalan Congress did not assign sufficient funding to the justice and
security sector. The state of Guatemala needs to allocate sufficient funding to the justice and security system, in
order to implement necessary reforms and make structural changes both possible and sustainable.
On the other hand, progress in legislative reform is imperative for the effective fight against impunity in
Guatemala. Advancing the suggested reforms is a priority, as they will have a lasting impact on the legal and
institutional framework for the criminal prosecution and conviction of members of illegal groups and clandestine
organisations within the state beyond the mandate of CICIG. Therefore, improving the working relationship
between the Guatemalan Congress and CICIG is crucial.
CICIG’s mandate ends in September 2011. President Colom has already initiated the procedure to ask for another
two-year extension of the Commission’s mandate. Such an extension has to be confirmed by the UN SecretaryGeneral, and UN Member States have to guarantee CICIG’s budget through their financial contributions. In
the light of the challenges that remain with regards to the fight against impunity in Guatemala, the fragility of
achievements and the need to ensure the sustainability of efforts undertaken, another extension of CICIG’s
mandate is necessary. UN Member States should support the Commission financially.
Once the Commission leaves Guatemala, donors have to make sure that they maintain a common strategic
approach and effective coordination including a functional division of labour. CICIG is an excellent vehicle for
effective donor coordination, which, in turn, is an essential condition for successful justice sector reform in order
to avoid duplication of efforts and to ensure that all relevant parts of the legal chain are targeted. According to
former Commissioner Castresana, at least a decade will be necessary to accomplish the work done by CICIG
and its local counterparts. Donors need to plan with at least a medium- or rather a long-term commitment. In
general, they must be aware that the international community has only limited scope for transforming societies,
and that endogenous processes are typically very lengthy in time and not linear. With regards to ensuring local
ownership, the existing National Agreement for the Advancement of Security and Justice signed in April 2009
must be the roadmap.
CICIG’s level of integration into the local judicial system and its dual focus on powers to promote prosecutions
and institutional reform tools make it a unique model worth replicating in other countries.170 However, CICIG
should not be considered as the new blueprint for international engagement to strengthen the rule of law and
combat organised crime. The natural starting point must always be the specific context and needs of a given
country. CICIG is born out of, and tailored for, the Guatemalan context. Evidence is abundant that local ownership
168See ‘Organizaciones sociales exigen destitución de Conrado Reyes’ [Social organisations demand removal of Conrado Reyes], Noticias
de Guatemala, 10th June 2010. Available at http://noticias.com.gt/nacionales/20100610-organizaciones-sociales-exigen-destitucion-deconrado-reyes.html.
169OECD (2010). Op. cit. p.170.
170 A. Hudson and A. W. Taylor (2010). Op. cit.
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is vital for reform processes to succeed, as is commitment.171 Reforms that are not shaped and driven by local
actors are unlikely to be implemented properly and sustained.172 Nathan underlines that the principle of local
ownership does not mean high levels of domestic support for donor activities, but donor support for programmes
and projects initiated by local actors.173
In addition, a transparent outreach strategy and engagement with civil society is important, although an inherent
tension exists between CICIG’s need to develop public support and the need to maintain confidentiality.174 The
‘demonstration effect’ can only be achieved through effective outreach. During the first two years the Commission
lacked such a strategy. However, since the end of 2009 CICIG boosted outreach activities through local and
international media, social networks, its website, the publication of reports and presentations, etc. Civil society
holds the “natural” ownership of CICIG; firstly, because they came up with the idea first, and, secondly, because
it is the citizens who held the Guatemalan state accountable. Civil society can exert a lot of pressure; its support
is critical for CICIG to succeed and progress in the fight against impunity in Guatemala. Furthermore, elite buy-in
is crucial for strengthening the rule of law in Guatemala. Interviews for this report revealed some evidence that
current elite buy-in is essentially motivated by fear and the perception of organised crime as a common threat to
the very state and all citizens, regardless of how influential they are.
Lastly, the international community needs to be aware of the political aspect of judicial sector reform as well
as the complexity of justice systems as such.175 Judicial reform necessarily entails political struggles as the
example of the appointment of Supreme Court judges in Guatemala illustrates. What Nathan acknowledges for
security reform is equally applicable to judicial reform: ‘It demands not only security expertise but also political
adroitness on the part of local actors and their international partners. It requires an ability to identify and seize
opportunities, develop appropriate strategies, build alliances and win over or outmanoeuvre opponents’.176
CICIG’s setup incorporates the lesson learned that a purely technical approach is not enough and will not prove
sustainable. Building local capacity and triggering institutional reform powers are as important as investigating
and prosecuting powers. The longer CICIG is in place, the more its focus should move towards the aspect of
local capacity-building and the promotion of the necessary legal and institutional reforms to combat impunity and
organised crime. Sustainability considerations should prevail over the ‘demonstration effect’.
Summary of Recommendations
To the state of Guatemala
• The state of Guatemala needs to boost its commitment and leadership to fight impunity in Guatemala.
• The reform process of the PNC needs to get started.
• A special investigations unit within the PNC with a minimum of 150 investigators and exclusive dedication
to combat impunity needs to be created.
• The penitentiary system needs to be reformed, including the construction of a maximum-security prison.
• The vetting progress within the police and the Judiciary must continue.
• The government must appoint a capable and decent attorney general.
• The UEFAC needs to be further completed and strengthened in order to generate sustainable capacity
within the Ministry of Interior and be operational beyond CICIG’s mandate.
• The protection of victims and witnesses needs to be strengthened.
• The state of Guatemala needs to allocate sufficient funding to the justice and security system, in order to
implement imperative reforms and make structural changes possible and sustainable.
• Progress in legislative reforms proposed by CICIG is imperative.
171 OECD (2005). Security System Reform and Governance, DAC Guidelines and Reference Series, Paris. pp.11–14; L. Nathan (2007). Op.
cit. p.3.
172 L. Nathan (2007). Op. cit. p.7.
173 Ibid., p.9.
174 See also A. Hudson and A. W. Taylor (2010). Op. cit. p.61.
175 L. Rakner, A. Rocha Menocal and V. Fritz (2007). Op. cit.
176 L. Nathan (2007). Op. cit. p.18.
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30 • Initiative for peacebuilding
To the international community
• The UN should extend CICIG’s mandate for two more years.
• UN Member States need to guarantee the Commission’s budget through financial contributions.
• Once CICIG’s mandate ends, the donor community has to maintain a common strategic approach towards
the security and justice sector in Guatemala.
• With regards to ensuring local ownership, the existing National Agreement for the Advancement of Security
and Justice signed in April 2009 must be the roadmap.
• Post-CICIG, the donor community must ensure effective coordination including a functional division of labour
with regards to their engagement to strengthen the rule of law. The duplication of efforts must be avoided
and all relevant parts of the legal chain need to be targeted.
• Donors need to bear in mind that contributions for at least a decade will be necessary to accomplish and
consolidate the work done by CICIG and its local counterparts.
• With regards to replicating CICIG’s model in other countries, the international community must not take the
model as a blueprint but should use the specific context and needs of a given country as the natural starting
point.
• A transparent outreach strategy and engagement with civil society is crucial for CICIG.
• CICIG needs to improve its working relationship with the Guatemalan Congress, in particular with the
objective of advancing proposed legal reform packages.
• The longer CICIG is in place, the more the focus should move towards the aspect of local capacity-building
and the promotion of the necessary legal and institutional reforms to combat impunity and organised crime.
Sustainability considerations should progressively prevail over the ‘demonstration effect’.
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