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International Actors in the Guatemalan Constitutional Reform: The Story of the CICIG

by Carlos Arturo Villagrán Sandoval, PhD Candidate, Melbourne Law School

This post is a synopsis of an article published by the Diplomatic Academy of the Ministry of Foreign Affairs of Guatemala. [For full article in Spanish1 see here]

In the last two years, a series of reform proposals have been debated regarding the constitutional reform of Guatemala’s judiciary. These constitutional reform proposals, which include a major overhaul of the election and composition of the Constitutional Court, the creation of a judicial supervisory organ and the recognition of indigenous justice, have been promoted by a foreign actor, the Comisión International Contra la Impunidad en Guatemala or the International Commission against Impunity in Guatemala (CICIG). This blog post will give an account of the activity of this pioneering and first of its kind international organisation. CICIG was constituted by an international treaty between the United Nations and the state of Guatemala in order for it to have the capacity to investigate and bring suits against corruption networks entrenched in Guatemala’s governing bodies. Therefore, CICIG becomes an interesting and unique experiment for scholars in the field of both international and constitutional law, as well as those focusing on state-building after civil conflict, for comparative study.
CICIG was the direct result of Guatemala’s recognition of its incapacity to confront corruption within state institutions. This incapacity was first recognised through the negotiation, and later ratification, of peace accords between 1994 and 1996, which brought peace to a 35 year-old civil conflict. The peace accords not only prescribed a series of commitments for new governments to tackle corruption, they also requested international aid, namely from the UN, in the pursuit of Guatemala’s state-building project and fight against corruption.

This request was later reinterpreted by the Guatemalan Constitutional Court when addressing the creation of CICIG in 2007. The Court delivered an opinion stating that: ‘[W] hen the full observance of human rights is a universal concern, it is logical for a State to expand its obligations in that regard and to require the support of an international organization specialized in the field, such as the United Nations, which is Consistent with the obligations acquired by the State in different international instruments in the field of human rights, which affirm the universal concern for its validity.’

The actual story of CICIG started in 2003, when the Guatemalan Human Rights Ombudsman pushed for the UN’s involvement in the fight against corruption. This led to the negotiation of the first ‘Commission for the Investigation of Illegal Groups and Clandestine Security Organizations in Guatemala’. This first organisation, however, never came to life as a result of an unfavourable opinion of the Constitutional Court, stating that its powers were too broad and that it arrogated the function of the National Prosecutor’s Office and the Judiciary. This was due to the fact that this first commission had the potential to prosecute crimes that affected human rights, and possibly war crimes, a topic sensitive for the ruling class in Guatemala.

After this unfavourable opinion, negotiators went back to the drawing board and modified its attributes for a new commission. This led, in 2007, to the creation of the International Commission against Impunity in Guatemala, or CICIG.

This new body, CICIG, is a new type of international body that is not dependent on the UN and is solely regulated by its constitutive instrument. This body differs from a traditional international organisation in the sense that it is a completely autonomous organisation, which not only acts within a domestic sphere of laws, but is also regulated by an international law agreement.  This means that CICIG is solely regulated by its constitutive treaty, which also enables it to investigate and bring criminal suits and act in judicial processes in Guatemala.

Its constitutive instrument establishes that this new body has the objective of aiding, strengthening and contributing to the state’s institutions in the investigation and prosecution of parallel institutions entrenched within the state.  In this capacity, this international body may bring charges against individuals and constitute itself as a complementary prosecutor in particular cases.  The international commission may also recommend the Guatemalan state adopt of public policies that may aid in the eradication of these parallel bodies and promote their prosecution and sanction.  This has involved the promotion of reforms for the Guatemalan legal system and judiciary, at both the ordinary and constitutional level.

Since its inception, the international commission has been led by three successive commissioners. Each commissioner has attempted to promote the rule of law and prosecute corruption in their own style. While the first commissioner had the task of installing CICIG in Guatemala, the latter two have endeavoured to promote constitutional reform, each with different effects.

Under the second commissioner, CICIG attempted to promote reform by publicly shaming judges and the judiciary. The CICIG, during this second commissioner’s term, developed a report called ‘Judges of Impunity’ in 2012. This report publicly named and shamed judges who had, in the view of CICIG, links with criminal structures. This report, rather than helping promote reform, actually negatively affected public perception of CICIG. The Commissioner’s actions resulted in a war with judges and lawyers in Guatemala, making it impossible for CICIG to promote constitutional reform, or even prosecute corruption. This scenario led to the resignation of the commissioner due to animosity with the judiciary.

The third, and current, commissioner took the reins under strong public scrutiny and with a need to deliver results. As an initial act, the new commissioner distanced himself from the work of his predecessor.  With this distancing, the commissioner succeeded in coupling himself with a new National Criminal Prosecutor and domestic judges. With this new coupling, the CICIG started to investigate certain key cases, including a major tariff fraud case in 2015 involving the President, Vice-President, a series of high-ranking tax officials, and private companies.

The prosecution of the former president and vice-president, as well as other high-ranking officials, in a series of corruption cases positioned the new commissioner as a crusader of justice in Guatemala. Also, his capacity to interact with other actors, such as the National Prosecutor and the Human Rights Ombudsman, has placed CICIG as a central and necessary figure for the promotion of the reform of the Guatemalan Constitution.

In 2016, under a new President, CICIG has been influential in promoting dialogue and serving as a technical and advisory actor on the reform process. In this new push for reform, CICIG has become a cohesive and authoritative actor for change. The new proposals have incorporated another proposal for constitutional reform presented in 2011 by a series of universities and a local think-tank.  This move has, thus, taken on board the academic sector and other actors in the reform context. In addition, the CICIG has promoted a major introduction and change to Guatemalan justice —the recognition of indigenous jurisdictions and custom. This has assisted CICIG in relations with the high percentage of indigenous groups in Guatemala.

Currently, the reform proposal is in the hands of the Guatemalan Congress, but, still, CICIG exerts a certain pressure onto Congress to approve the reforms and later put them to the population in a referendum.

CICIG raises new questions about the limits of international organisations within domestic contexts. The CICIG experiment also demonstrates the need to reconceive of the role of sovereignty, and how this is constitutionally envisioned in a domestic setting. Therefore, CICIG presents itself as an interesting laboratory for the direct interaction of international laws with constitutional state architecture, the need to promote the rule of law and state-building.

Finally, although the CICIG has not, yet, accomplished any constitutional change within Guatemala, internationally the CICIG has become a referent for change. In neighbouring Honduras, another country plagued by corruption issues, the current government has agreed on the creation of a somewhat similar international body with the Organisation of American States. In this new effort, the OAS has ratified a treaty with the Honduran government to aid in a ‘dialogue’ on the reform of the Honduran judiciary.

1. Carlos Arturo Villagrán Sandoval, “Soberanía y Legitimidad de los Actores Internacionales en la Reforma Constitucional de Guatemala: El Rol de CICIG”, 1(1) Política Internacional, 2016, p.36 

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