(Este artículo también se encuentra en español aquí.)

On the Western shore of Lake Izabal in Guatemala, a state of emergency instituted by the Guatemalan government engulfed the small town of El Estor last October. State security forces, including national police units, conducted violent raids resulting in more than 60 arrests. This was the latest in a history of crackdowns on residents there, who are primarily members of the Mayan Q’echi’ indigenous community. Such repression is an ongoing feature of kleptocracy in Guatemala, and reminiscent of a period of violence so extreme and targeted against indigenous populations as to be widely recognized as a genocide.

Many brave judges and prosecutors in Guatemala have sought to restore the rule of law and bring an end to the unlawful land-grabbing that has fueled the violence. Their efforts, however, have been stymied by corrupt networks that have captured all three branches of government. The international community has responded by sanctioning a few lower-level actors involved in corrupt schemes, but has so far failed to go after the masterminds who use their influence to secure high-level justice sector appointments for their friends. To address this challenge, sanctions officials need to focus less on the low-level operators passing bribes and more on high-level influence peddling.

Justice Sector Personnel Forced Into Exile

A crucial character in the story of El Estor assumes vigil over the crisis from thousands of miles away. Judge Gloria Porras is exiled in Washington, D.C., driven from her veteran seat on Guatemala’s Constitutional Court — and separated from her family — by a series of threats and frivolous legal claims. Her exile is linked to rulings she made upholding indigenous rights in El Estor and accountability for corruption crimes. In 2020, Porras was the president of the Constitutional Court when it issued its decision confirming an earlier ruling to suspend mining operations in El Estor, finding violations of the International Labor Organization Convention Concerning Indigenous and Tribal Peoples (known commonly as “ILO 169”) dating back to 2005. The court confirmed that companies had begun operations despite an absence of prior consultations with indigenous communities required by ILO 169 and proper environmental assessments mandated by Guatemalan law.

In early 2021, Guatemala’s Supreme Court entertained multiple requests to strip Porras of her immunity, and the Guatemalan Congress opened an investigation, blocking her from her post. Sixty criminal complaints were filed against her, and the onslaught prompted international attention. “I am extremely concerned about the systematic use of legal weapons to obstruct the swearing in of Judge Porras,” the United Nations special rapporteur on the independence of judges and lawyers, Diego García-Sayán, commented at the time.

Porras is not alone. In the past six months, peer after intrepid peer in Guatemala has faced attacks serious enough to force or threaten exile. Judge Erika Aifán and Pablo Xitumul de Paz are facing the denial of their judicial immunity in concurrent proceedings, in apparent retaliation for supporting investigations into grave human rights abuses and high-level corruption. Aifán has been a judge in Guatemala for 17 years, presiding over corruption cases against powerful businessmen, judges, and lawmakers. Her efforts to promote transparency and judicial independence earned her the U.S. Secretary of State’s International Women of Courage award last year. In addition to the assault on the judiciary, lead anti-corruption prosecutor Juan Francisco Sandoval was arbitrarily removed from his post as head of the Special Prosecutor’s Office against Impunity in July and forced to flee the country.

The Need for Higher Level Sanctions

Anti-corruption has become a public focal point of the Biden administration’s policies in Central America, with corruption regularly cited by U.S. government officials as a root cause of migration. In December, the White House announced the first-ever “whole-of-government” strategy to combat corruption, and three anti-corruption task forces spanning at least four agencies have been announced in recent months. Likewise, the international community is increasingly relying on targeted sanctions to combat corruption, through new regimes modeled on the U.S. Global Magnitsky Act.

And yet, impunity for corruption in Guatemala is growing more entrenched, with the shuttering of its world-renowned anti-corruption commission in 2019 and the subsequent systematic exiling of judges and prosecutors known for their powerful stances against corruption.

The United States has responded to attacks on Guatemala’s justice sector by denying visas to those involved in filing frivolous complaints against judges and sanctioning individuals alleged to have collected bribes in exchange for securing judicial appointments. While in some ways, these actions have been innovative and responsive, so far they have not had the desired impact. There are likely two reasons for this: First, visas denials are insufficient to curb the behavior of the worst actors. Financial sanctions are needed. Second, those who have been sanctioned are intermediaries passing the bribes from criminal networks. On Dec. 9, the U.S. Treasury Department designated Manuel Victor Martinez Olivet for acts of corruption under Global Magnitsky, outlining his involvement in acts of fraud and misappropriation related to his tenure as an area director in the Ministry of Public Health during the pandemic. While these acts are unconscionable, Martinez is a relatively small fish.

More powerful businessmen in Guatemala who stand to benefit from a corrupt judiciary have escaped scrutiny by sanctions authorities, notwithstanding evidence that they use their influence to secure high-level justice sector posts for their friends in exchange for favorable treatment. While such a quid pro quo is a well-recognized form of corruption, sanctions officials have so far been hesitant to target such misconduct absent evidence of financial bribes.

In fact, dozens of government officials and business leaders were indicted with the support of the U.N.-backed International Commission Against Impunity in Guatemala (known by its Spanish acronym CICIG) for everything from assassination to obstruction of justice to illegal campaign contributions. Only one of these individuals has been the subject of U.S. financial sanctions, despite evidence that proceeds of the vast range of illegal activity uncovered by the commission may have been invested in the United States. A handful of those implicated have been included in what is known as the “Engel List,” a roster issued by the State Department that publicly names corrupt actors in Guatemala and restricts their U.S. access, but it carries no financial consequences per se.

Existing global sanctions regimes targeting corruption can apply to attacks on judges and prosecutors without new or amended statutes. Indeed, for global sanctions to realize a more potent impact, they must. The U.N. Convention against Corruption highlights the concepts of influence trading and abuse of power as forms of corruption. Both the convention and a key U.S. anti-corruption statute, the Racketeer Influenced and Corrupt Organizations Act (RICO), include obstruction of justice as a corrupt activity, alongside more traditional financial crimes. If sanctions officials recognized threats against judges as a form of “material support” for acts of significant corruption — the legal standards for imposing GloMag sanctions — then individuals on the Engel’s list would be subject to financial penalties.

In Guatemala, corrupt authorities pursue a two-fold strategy: they use their political power first to evade merit-based processes for appointing judges to the country’s highest courts, planting individuals they know will quash corruption investigations against elites; and next to drive out the prosecutors, judges, and activists protecting the country’s last independent anti-corruption efforts. Sometimes these strategies involve financial exchanges, but they are often shrouded as campaign contributions.

Despite the United States’ active stance on combating corruption, the attack on judicial independence in Guatemala has only become more sweeping. Granted, threats against progressive judicial officials in Guatemala have long been violent. In January 2003, Supreme Court Judge Hector Mauricio Rodrigues Argueta – who handled complaints against public officials –  was shot dead in what the police concluded was an attempted car-jacking. Judge Jose Victor Bautista Orozco, presiding over drug-trafficking and robbery cases, was subjected to death threats and then shot dead while he was leaving his house on April 25, 2005. Supreme Court Judge César Barrientos died under mysterious circumstances in 2014, after facing numerous threats throughout the course of his career.

But often, the most effective interference in judicial functions involves neither traditional bribery nor gross violations of human rights – the two most common grounds for sanctions designations under the Global Magnitsky Act. When progressive judges like Aifán are threatened in the courts, influence runs so deep that there may not be an individualized financial transaction at hand. The motivations are nonetheless steeped in grand corruption, and well-rewarded: by dismantling the independence of the judiciary in this way, elite actors do away with the institution that serves to check government and private sector corruption. In her explanation of the system in Honduras, corruption expert Sarah Chayes describes it as “a high-level political official enact[ing] patterns to subject government institutions to his or her personal authority, for maximum financial gain.” By essentially legalizing grand theft, these are moves arguably more devastating to anti-corruption efforts than an individual incident of grand theft itself.

The Solution

The U.S. Treasury Department and its counterparts in the United Kingdom and the European Union should consider high-level influence peddling, attacks on justice-sector personnel, and abuse of power as “acts of significant corruption” or “material assistance,” the current operative terms within the U.S. Global Magnitsky Act. To make this shift effective, authorities would do well to issue guidance on what evidence standards apply in cases involving corruption that takes these forms, and increase their proactive engagement with nongovernmental organizations possessing the expertise to connect the dots.

In addition, the U.S. Congress should pass the Combatting Global Corruption Act, a set of provisions that would create a country-specific ranking system based on compliance with anti-corruption norms and commitments, and require rigorous reporting and oversight for the State Department to better track new trends and targets.

Finally, the U.S. Agency for International Development and the State Department should exert pressure to ensure transparency and due diligence in the upcoming selection of a new prosecutor general in Guatemala. The nomination process is set to take place during the next three months. If the process is flawed, as many fear, good faith aid spending aimed at fighting corruption crimes could be wasted. The Prosecutor General’s Office in Guatemala serves as the lead investigative agency for criminal offenses during the preliminary stages of criminal proceedings and oversees criminal prosecutions, making it the most authoritative and decisive body for ensuring the independence and advancement of high-level corruption cases.

The momentum and sophistication of global anti-corruption efforts is at an all-time high, at last incorporating investigative efforts by civil society and acknowledging links between corruption and human rights abuses. But the international community’s most innovative global anti-corruption tools will miss the mark if they focus on suspect financial exchanges to the exclusion of coordinated attacks on independent jurists known to advance anti-corruption in the courts. If this problem is not addressed, the real-world impact for vulnerable communities could be profound. In El Estor, the government has replaced its state of emergency with a “state of prevention,” but military and police presence persists. On Jan. 7, Guatemala’s Energy and Mines Minister Alberto Pimentel signed a resolution allowing companies to restart operations.

(This analysis was prepared by staff members of the American Bar Association Center for Human Rights. The views expressed herein represent the opinions of the authors. They have not been reviewed or approved by the House of Delegates or the Board of Governors of the American Bar Association and, accordingly, should not be construed as representing the position of the Association or any of its entities.)

IMAGE: A member of the Guatemalan Army patrols El Estor indigenous municipality, in northeastern Guatemala, on October 26, 2021, following the declaration of a state of siege after protests against the Compania Guatemalteca de Niquel, a subsidiary of Swiss Solway Investment Group. Guatemalan President Alejandro Giammattei declared a state of siege on October 24 -in force for 30 days- in El Estor, a day after the police clashed with indigenous people protesting against the mining company, which they accuse of causing environmental damage. (Photo by JOHAN ORDONEZ/AFP via Getty Images)