Friday, June 11, 2010

Positive Complementarity? The Case of CICIG in Guatemala

(Another in IntLawGrrls' series of posts in connection with the Kampala Conference)

As the International Criminal Court Review Conference winds down in Uganda, it is worth considering how national legal systems might actually get to the point when they are no longer notoriously “unwilling or unable,” to quote Article 17 of the Rome Statute, to prosecute serious crimes involving violations of human rights.
If it’s not the ICC’s job, then how could it happen?
Take the case of Guatemala.
Over 200,000 people, most of them Mayans, were killed during the 1960-1996 series of military dictatorships. (The case on which we've posted, concluding that this constituted genocide, can be found here). Since then, Guatemala has turned into a poster child for impunity: not only have most cases from the internal armed conflict period never been investigated or tried, but drug and human trafficking and fraudulent child adoption rings run rampant, and violence against women has led to over 4000 deaths of women and girls since 2000.
Less than 2% of the cases ever make it to trial. It got so bad that after much pressure from civil society, a U.N-sponsored initiative called the Commission Against Impunity in Guatemala (known by its Spanish initials as CICIG) was created in 2008 to help the national prosecutors’ office improve its ability to investigate and try cases. CICIG’s mandate is to investigate the existence of illicit security forces and clandestine security organizations that commit crimes, and to identify their illegal group structures (including links between State officials and organized crime), activities, modes of operation, and sources of financing. CICIG is to support the national Prosecutors’ office, act as a third-party prosecutor, and recommend policies to the government to strengthen the justice system. It does not, however, have the power to initiate its own prosecutions, a power the courts have held is exclusive to the Prosecutors’ Office. Thus, if the prosecutor is corrupt or ineffective, CICIG’s only recourse is through public pressure.
Nonetheless, the mechanism constitutes an interesting and innovative half-way house between technical assistance and a full-fledged hybrid tribunal.
Apparently, the mechanism had some modest success, and therefore stirred up quite a bit of opposition. Right-wing commentators began a campaign against the head of the Commission, Spanish prosecutor Carlos Castresana, accusing him of having an affair with a staffperson. But the last straw came last week, when President Alvaro Colom appointed as prosecutor a man named Conrado Reyes, accused by Castresana of having ties to organized crime. The U.N.-appointed anticorruption commissioner, Castresana, resigned in fury, telling the press that his recommendations had been ignored, and that the selection process for the new prosecutor had been itself influenced by criminal elements. Civil society organizations lamented the end of CICIG, and the new triumph of impunity.
And now the other shoe has fallen.
Today the Constitutional Court invalidated the whole selection process, told President Colom to start all over again, and held that any acts carried out by Reyes were invalid. Colom gratefully accepted the way out provided by the Court, and Reyes resigned.
While Castresana has not rescinded his resignation, a new Commissioner will find his or her hand strengthened by the outcome. Whether a new Commissioner can continue to prod, and whether a new Prosecutor will take seriously the need to put in place staffers who actually want to bring cases (whether for historical war-related crimes, femicides or organized crime activities) are still open questions.
But for now, at least, this type of international intervention in national legal systems, while not exactly “positive complementarity” about which Margaret deGuzman posted yesterday, might bear looking at closely by those concerned with making justice effective nationally.

1 comment:

Jason said...

Guatemala has a particular advantage with regards to CICIG - its populations capacity to absorb acts of violence without losing sight of the bigger picture.

Last week, four human heads were left in strategic parts of the city bearing messages for members of the government. It was gruesome, but it did not derail either the politicians nor transform public opinion regarding the value of fighting impunity.

I saw the level of violence employed as a sign of desperation on the part of these groups, rather than of strength. They will only become more openly violent as they lose power.

This is a very difficult phase to pass through, but the events of this week offer hope that the institutions of state possess the capacity to function as required, that they can respond positively to profound events and make the right decisions.

The way this crisis ended has, in my view, been a resounding success with the public. A little history was made and the criminals took a golpe.