In a rare and strong show of bipartisanship, the leadership of the U.S. Senate and House foreign relations committees wrote to Secretary of State Mike Pompeo recently expressing support for a United Nations-backed anti-corruption commission in Guatemala. The President of Guatemala is taking steps to eliminate the commission – notwithstanding the fact that more than 100 individuals charged in the course of its investigations remain at large – now that the panel has begun investigating him for campaign finance violations. The endemic corruption in the highest levels of the Guatemalan government, including the security ministries, makes it next to impossible for Guatemala to work effectively with the U.S. in combating transnational crime and illegal migration without the continuing work of the commission.
The U.N.-supported International Commission Against Impunity in Guatemala (known by its Spanish acronym CICIG) was established in 2007 to address the legacy of the country’s four-decade internal armed conflict, including rampant impunity linked to “Illegal Clandestine Security Apparatuses.” These structures, mostly armed, emerged in the wake of the war’s violence with links to the military and intelligence services. CICIG was created to investigate these organizations and support local prosecutors in pursuing justice.
The commission does not have the ability to independently arrest, search, or bring charges; it must work with the Prosecutor General of Guatemala and the courts. This structure both limits the power of CICIG and ensures Guatemalan sovereignty. Nonetheless, without CICIG, the justice sector would be unable to effectively investigate and prosecute organized crime and high-level corruption in Guatemala.
The American Bar Association’s Center for Human Rights has monitored cases in the high-risk courts charged with adjudicating cases of organized crime and human rights abuses. On the basis of this experience, the center has concluded that Guatemala’s justice sector still lacks the independence to effectively combat transnational crime. While many judges and prosecutors have pursued high-risk cases with great integrity and determination, they have faced death threats and frivolous prosecutions. In addition, credible reports of bribery within the judiciary – including in the process to select high-court judges – further call into question the independence of the justice sector.
In light of the ongoing barriers to securing accountability, it is no surprise that the commission enjoys widespread public support in Guatemala, with approval ratings around 70 percent. CICIG has supported the prosecution of more than 1,000 individuals involved in illegal security groups. In the course of investigating these structures, CICIG unraveled a web of illegal activity, including illegal adoptions, narcotics trafficking, and unlawful migration. These abuses and illegal networks harm U.S. security interests, as well as entire families and businesses in both countries.
For example, the commission’s investigations have revealed corruption within Guatemala’s security sector. CICIG uncovered a kick-back scheme that involved the National Civil Police and other security agencies. Additional charges brought by the Prosecutor General’s office, with CICIG’s support, involving a $70 million embezzlement scheme in the Ministry of Defense have stalled for no apparent reason. According to the Security Assistance Monitor, the United States provided over $100 million of security assistance to Guatemala between 2012 and 2017. Without CICIG’s ongoing support of investigations into corruption in the security sector, the United States cannot trust that security assistance it is providing to Guatemala is being used as intended.
Show of Force With U.S.-Donated Vehicles
Indeed, recent events further call into question the government of Guatemala’s commitment to abiding by its agreements with the United States on security cooperation. The day President Jimmy Morales announced the decision to terminate CICIG’s mandate, military grade vehicles donated by the United States to Guatemalan law enforcement were seen in the proximity of the U.S. Embassy and CICIG’s headquarter.
Members of Congress noted in their letter to Pompeo that the deployment of the vehicles in this manner appears to have been intended to send a political message and was not consistent with the purpose for which the vehicles were donated. The use of US-origin equipment for reasons other than their intended purpose is a violation of Section 3 of the Arms Export Control Act and agreements concerning the transfer of such equipment from the United States. Section 3 of the act bars further transfers of equipment where there has been a violation. The provision of equipment by the Defense Department – though not directly regulated by the Arms Export Control Act – must nonetheless comply with the terms of that act.
Corruption within Guatemalan extends far beyond the security sector to a number of agencies and ministries that directly impact U.S. interests. Foreign adoptions, especially by U.S. families, inadvertently fueled a lucrative illegal adoption trade that resulted in child abductions and the manipulation of families in vulnerable situations. CICIG investigated this network and found that 60 percent of adoptions had “irregularities” and required more investigation. CICIG accused individuals involved in these irregularities, including a judge, of “child laundering,” e.g. altering the record of the child to prevent the biological family from being able to locate them.
Likewise, another CICIG investigation into Guatemala’s migration agency found a scheme to sell false passports and other documents. Court documents in that case indicate that the United States supported the investigation out of concern that the scheme would contribute to illegal migration to the United States.
In addition to uncovering corruption within the adoption and migration agencies, a CICIG investigation led to the indictment of several former ministers who allegedly had paid former President Otto Pérez Molina for their positions. Pérez Molina subsequently resigned and is now facing prosecution.
Undermining U.S. Efforts
Corruption within these ministries has undermined U.S. investments in the country. For example, one of the ministers indicted by the Prosecutor General’s office, former Minister of Mines and Energy Erick Estuardo Archila Dehesa, granted licenses to a number of extractive and energy companies without conducting legally required consultations or ensuring proper environmental protections were in place. This misconduct affected at least one U.S. company – Kappes, Cassiday and Associates – whose operations were subsequently suspended while the ensuing legal disputes are resolved.
Rather than dealing with the illegal networks permeating the government, the Morales administration has repeatedly sought to undermine CICIG’s ability to fulfill its mandate. Last year, Morales declared the head of CICIG to be persona non grata, only to have his decision overturned by the Constitutional Court. In the last few months, Morales resumed his attack on the commission, hoping to seize an opening in the wake of unsubstantiated allegations that the Kremlin manipulated CICIG to indict a Russian national as part of the fraudulent document scheme in the migration agency. When these allegations were found to be without merit, Morales notified CICIG of his intent not to renew the commission’s mandate – which expires in 2019 – and refused to the let the head of the commission, Iván Velásquez, return to Guatemala from a trip to the United States.
Earlier this week, the Constitutional Court of Guatemala again ruled that Velásquez should be permitted to return to Guatemala. The Guatemalan Minister of the Interior nonetheless refused to permit his return. A complaint has been filed with the Prosecutor General demanding that she enforce the court’s judgment.
Clearly CICIG is not out of the woods. The ongoing constitutional crisis in Guatemala underscores concerns that corruption continues to permeate high levels of the government. Under these conditions, U.S. strategic interests can only be addressed if CICIG is allowed to fulfill its mission, complete all pending cases and secure the arrest of all of those who have been indicted.
The views expressed are the author’s own. They have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and should not be construed as representing the policy of the American Bar Association.