Restorative practices: the role of the International Commission against impunity in Guatemala -CICIG-.
Author: Mauricio Abraham Rosales Schettini
Translated into english by Leah Ann Durst-Lee
After a 36-year Internal Armed Conflict (IAC) (1960-1996) the peace agreements in Guatemala marked the arrival of a new chapter in the reconstruction of a new society based on the search for agreements and the strengthening of a fragile and incipient democracy (WOLA, 2019). Contrary to what one might think in theory, the peace accords in Guatemala did not result in a decrease in violence, but rather led to a significant increase in violence (Calvet, 2019, p. 6).
This context allowed the emergence of the so-called illegal bodies and clandestine security apparatuses (CIACS) in the late 1990s, defined as criminal groups that have infiltrated state institutions fostering impunity in Guatemala (CICIG, 2019). In that sense, the International Commission Against Impunity in Guatemala (CICIG) emerged as a result of efforts by Guatemalan civil society groups. As a reaction to this advocacy, in 2006 the Guatemalan government asked the United Nations (UN) to help establish an initiative with the objective of dismantling these criminal structures and strengthening the rule of law (Calvet, 2019).
In 2007, after a negotiation process between the involved parties, the Commission was born. Supported by the UN, the Commission is financed exclusively through voluntary contributions from countries friendly to Guatemala. CICIG is therefore the result of a multilateral effort to strengthen the rule of law and empower citizens to fulfill their duties and enjoy their rights (CICIG, 2018).
This essay proposal is methodologically based on the documentary review of works, research and academic productions that deal with the work of International Commission against Impunity in Guatemala (CICIG) as a relevant actor in restorative processes in Guatemala, as well as its evident relationship with the fight against corruption and impunity in the country for more than 12 years.
In this sense, an approach will be made from the efforts of the Commission in the search for justice, equality, empowerment of society and the strengthening of the State through restorative practices from the conceptualization of Zehr (2010) in his work "The little book of restorative justice" with a qualitative approach and the characterization of specific cases in the approach of these concrete practices that allow the materialization of reference acts in restorative justice.
Finally, from the perspective of international relations it seems important to mention the role of the international community in the negotiation and creation of a sui generis commission in the Latin American region, which would set a precedent at a global level in the fight against corruption and impunity with the collaboration of external agents in the international system and the active participation of the United Nations together with Member States to achieve the objectives emanated in the principles of the San Francisco conference of 1945. sui generis en la región latinoamericana, que sentaría un precedente a nivel global en cuanto a la lucha contra la corrupción y la impunidad con la colaboración de agentes externos en el Sistema Internacional y la participación activa de las Naciones Unidas junto con Estados Miembro para lograr cumplir los objetivos emanados en los principios de la conferncia de San Francisco de 1945.
Results of the Commission in Guatemala
CICIG as a commission was a novel experiment of its kind. By its nature, it did not belong to the Guatemalan State nor did it belong to the United Nations. It emerged, as we have developed, as an agreement between the two parties. Once the UN Secretary General appointed the Commissioner, his autonomy within his competencies was almost absolute. The Commission was responsible for raising its own funds and administering them (Haering, 2019). Its role, in terms of working with the Public Prosecutor's Office, the justice system and Guatemalan institutions, was to guarantee the success of the investigations of those cases in which the need for CICIG's intervention permeated.
CICIG was a unique and innovative model of international cooperation characterized by the fight against organized crime, entrenched corruption and endemic impunity (Donovan, 2008. Cited in Calvet, 2019, p. 17).
After 12 years in the country and following the cessation of operations by unilateral decision of then President Jimmy Morales, CICIG achieved an unprecedented level of accountability in the country, achieving a transformation of the Guatemalan justice system (CICIG, 2018. Calvet, 2019).
According to WOLA (2019) the Commission contributed to bring more than 120 cases to the Guatemalan justice system, involving more than 1,540 individuals and one some 200 officials or former government officials facing charges for acts of corruption. In addition, joint investigations by CICIG and the Attorney General's Office led to more than 400 convictions.
The Commission was also fundamental in the country to establish new procedures for the election of judges of high courts and the figure of attorney general, thus contributing to the independence of the judicial system (Burt, 2017). In that sense, it can be added that CICIG was determinant in the conformation of special courts where judges can be better protected from organized crime, the implementation of new methodologies to investigate criminal networks, as well as the establishment of a special investigations unit, a criminal analysis unit and a witness protection program (WOLA, 2019).
Contributions to restorative practices
The Commission, in a sui generis model sui generiswas the perfect scenario for both transitional justice and restorative justice to interweave in order to reach the leitmotif of any process: the search for justice and peace in a society marked by conflict and historical struggles rooted in history. CICIG's accompaniment of Guatemalan institutions in the search for justice, reparation of damages, attention to victims, the involvement of society and the active participation of the actors involved made its work in the country a path towards justice.
As indicated by CICIG (2018) in its annual work report, the sentences led because of the work of the commission in conjunction with the Guatemalan authorities in the justice system, set a precedent for the promotion of not only punitive but also restorative criminal justice (p. 55).
Thus, the work of CICIG was important as restorative justice practices were nurturing the accompaniment of the affected groups in those cases investigated for corruption and impunity in Guatemala from 2007 to 2019.
Zehr (2010, p. 35) clearly states that a central element of restorative justice is the idea of making amends. That is, taking action to restore relationships and taking responsibility for the wrong done. CICIG was instrumental in recognizing, within the investigation processes, the reparation of damages by those implicated in corruption cases.
Measures such as the extinguishment of assets through the National Secretariat for the Administration of Assets in Extinction of Dominion (SENABED), the involvement of affected communities and the use of resources in money laundering or acts of corruption for the benefit of the population at the disposal of the State.
Such is the example of the Construction and Corruption case, in which a complex network was identified involving cardboard companies whose objective was to obtain unreported funds for electoral campaigns and the collection of illegal commissions for the enrichment of officials. This led to economic fines, prosecutions, greater controls from public entities, guarantees of non-repetition and dignified and comprehensive reparation.
With applications such as in the aforementioned case, we see how elements of what Zehr (2010) calls the treatment of damages and causes are fulfilled to achieve restorative justice as well as the reintegration of all parties to society through a balance between their interests (p. 37-40).
The investigations and cases in which CICIG was directly involved during its stay in Guatemala, was an example of inclusion of diverse actors in the processes. This is another example of restorative practices, which add to the principles outlined in restorative justice (Zehr, 2010, p. 41). In the La Línea case, where a corruption structure related to customs and ports was uncovered that included high-level government officials. Through collaborative and inclusive processes, after the corresponding investigations, CICIG was successful in its openness to involve all those who had a particular interest in what happened. This particular case led to the resignation of a vice president and a president, involved in countless acts of corruption in light of social pressure and involvement, which otherwise, without the accompaniment and restorative openness from CICIG would not have been possible (CICIG, 2018; Zehr, 2010, p. 41-44). It is no coincidence that CICIG's support at the grassroots level reached a level of 85% (Haering, 2019). This is evidence of the strong involvement of actors at the social level in processes where justice was the common denominator.
When talking about CICIG and restorative justice in terms of actors and stakeholders, it is essential to always keep in mind that those affected, in most cases, would be at the societal level. That is to say, Guatemalan citizens who saw their own State being taken over and plundered by a complex network of corruption and impunity that resulted in backwardness, poverty, social injustice, inequality, among others.
Focusing on these needs, understanding the effects of impunity, addressing the obligations, the broad involvement of the parties as exemplified and the referent to amend the damages and offenses based on respect and due process by strengthening the Guatemalan justice system and rule of law made CICIG, in the opinion of this author, an example of restorative practice in Guatemala under a unique model of accompaniment in justice (Zehr, 2010, p. 40-44).
Impacts for the region and the role of the international community.
Although CICIG ended its mandate in January 2019 when it was not renewed due to unilateral measures by the Guatemalan government of then President Jimmy Morales for political reasons, its success and unique model in the world have left a mark for implementation and replication in other latitudes of the Central American region.
Thanks to the positive results of the CICIG in Guatemala, Honduras proposed the creation of the Commission against Impunity in Honduras (CICIH), but without success. However, in 2016, a mechanism was created within the framework of the Organization of American States (OAS) and not the UN, called the Mission of Support against Corruption and Impunity in Honduras (MACCIH); which took as inspiration the model of the Guatemalan Anti-Corruption Commission (WOLA, 2019; Calvet, 2019).
In this sense, there have been initiatives for the creation of mechanisms at the regional level and not only of States. Such as the case of ideas from the United States of America, which proposed the creation of a regional CICIG, for the countries of the Central American Northern Triangle (TNC) (The Northern Triangle of Central America is understood as the countries that make up the northern part of the region: Guatemala, El Salvador and Honduras. These cover a territorial extension of 242.4 thousand km2 and in the last six decades have ostensibly increased their population from 6.8 million in 1950 to 30.9 million in 2015, increasing by 4.5 times (Flores, 2016. p. 25) or a Central American Tribunal against Corruption. Considering the transnational nature of organized crime and the fact that these three countries share high rates of criminality, violence and impunity, it could be an idea to be considered by the international community (Calvet, 2019, p. 19).
However, both the political will of the states that make up the TNC and the elites that control the status quo have made it less and less possible to speak of initiatives in favor of the search for justice, restorative practices and the fight against impunity (Haering, 2019). status quo han hecho que cada vez menos sea posible hablar de iniciativas en pro de la búsqueda de justitica, práctivas restaurativas y la lucha en contra de la impunidad (Haering, 2019).
The opportunity of the Commission and the role of the international community allowed a greater dissemination of global human rights standards in Guatemala (Benitez, 2016, p. 148). While in traditional forms of cooperation from a neoliberal vision of international relations, States base their forms of technical assistance through training and provision of equipment for institutional strengthening or the promotion of specialized or temporary criminal courts for specific investigative purposes (Calvet, 2019, p. 18).
CICIG demonstrated how there was a different way and interest from the International Community and the United Nations cooperation system in the establishment of new ways of doing justice based on practices, such as restorative ones, that allowed the respect of the parties; but also the positive sum of negotiations in which actors of various kinds were involved.
This allowed CICIG to maintain its successful operations in the field for 12 years with funding from member states of the international system, mainly from the well-known G-13 Donor Group (The G-13 Donor Group is a coordinating body between countries, bilateral and multilateral agencies, formed by the nine countries that allocate more cooperation resources to Guatemala: Canada, Germany, Italy, Spain,France, Sweden, Switzerland, United States, United Kingdom and by the following multilateral agencies: Inter-American Development Bank (IDB), World Bank (WB), International Monetary Fund (IMF), the United Nations System (UNS), the Delegation of the European Union (EU) and the Organization of American States (OAS) (Permanent Secretariat of the Cooperation Coordination Group - GCC - s. f), demonstrating that there are incentives from the logic of cooperation that lead States to avoid conflict and seek other ways to maximize their profits and position in the international system.
Although much has been written about the role of CICIG as a fundamental actor in transitional justice in Guatemala after the peace accords, it seems central to recognize its role as an actor in restorative justice practices. As has been discussed, the Commission played an important role in establishing practices that went beyond criminal justice in Guatemala. In this sense, it is important to take up the words of Zehr (2010, p. 14) where he states that restorative justice is a compass, not a map; it is not a program or a specific project. Thus, CICIG's experiences showed the establishment of relationships and mechanisms that sought the inclusion and collaboration of diverse actors in an effort to seek the common good through justice.
It is important to note, as has been observed throughout this development, that the postulates and work of the Commission during its time in the country in terms of restorative justice, were never intended to be a panacea nor a substitute for the legal system or incarceration (Zehr, 2010, p. 15-17). Rather, a set of actions to accompany and complement the process as a whole made CICIG's work a model for the world to emulate.
Finally, as has been discussed, the role of negotiation in terms of cooperation from the International Community for the creation and operation of the Commission was fundamental as it allowed the development of a unique model in the region that set precedents in the fight against impunity and corruption.
List of References
Benítez, M. (2016). Guerra y posconflicto en Guatemala: búsqueda de justicia antes y después de los acuerdos de paz. Revista CS, no. 19, pp. 141-166. Cali, Colombia: Facultad de Derecho y Ciencias Sociales, Universidad Icesi. Recuperado de: http://www.scielo.org.co/pdf/recs/n19/n19a06.pdf
Burt, J. (2017). La campaña anti-Cicig: hasta dónde llega su impacto. Plaza Pública. Recuperado de: https://www.plazapublica.com.gt/content/la-campana-anti-cicig-hasta-donde-llega-su-impacto
Calvet, E. (2019). La Comisión Internacional contra la Impunidad en Guatemala (CICIG): dilemas tras 12 años de actuación. Documentos de trabajo, No. 6 (2ª. Época). Madrid, Fundación Carolina. Recuperado de: https://www.fundacioncarolina.es/wp-content/upload\s/2019/06/DT_FC_06.pdf
Comisión Internacional Contra la Impunidad en Guatemala -CICIG- (2018). Informe anual de labores CICIG. Guatemala: CICIG. Recuperado de: https://www.cicig.org/wp-content/uploads/2018/11/XI_Informe_Anual_CICIG_2018.pdf
Comisión Internacional Contra la Impunidad en Guatemala -CICIG- (2006). Acuerdo entre la organización de las Naciones Unidas y el gobierno de Guatemala relativo al establecimiento de una Comisión Internacional contra la Impunidad en Guatemala -CICIG-. Recuperado de: https://www.cicig.org/uploads/documents/mandato/acuerdo_creacion_cicig.pdf
Flores, M. (2016). Migración del Triángulo Norte de Centroamérica a los Estados Unidos de América. Recuperado de: https://www.researchgate.net/publication/313070492_Migracion_del_Triangulo_Norte_de_Centroamerica_a_los_Estados_Unidos_de_America
Haering, D. (2019). Comisión Internacional Contra la Impunidad en Guatemala: morir de éxito. España: Real Instituto Elcano. Recuperado de: https://www.realinstitutoelcano.org/analisis/comision-internacional-contra-la-impunidad-en-guatemala-morir-de-exito/
Secretaría Permanente del Grupo de Coordinación de la Cooperación – GCC – (s.f). Acerca del G13. Recuperado de: http://www.g13.org.gt/content/acerca-del-g13
Washington Office on Latin America -WOLA- (2019). Los hechos: El legado de la CICIG en la lucha contra la corrupción en Guatemala. Recuperado de: https://www.wola.org/es/analisis/los-hechos-el-legado-de-la-cicig-en-la-lucha-contra-la-corrupcion-en-guatemala/
Zehr, H. (2010). El pequeño Libro de la Justicia Restaurativa. Good Reads.
Mauricio Abraham Rosales Schettini is Guatemalan. Degree in International Relations, with Cum Laude mention from the Rafael Landívar University. University professor. He has a Diploma in Political and Citizen Education from the José Simeón Cañas Central American University in El Salvador. He has represented Guatemala in spaces of the United Nations Organization in Chile, Costa Rica, Mexico, Guatemala and New York.
He has been recognized by the Friedrich Naumann Foundation for Freedom, for leading management projects for development focused on governance, urbanism and advocacy. He has been recognized by the Friedrich Naumann Foundation for Freedom, for leading management projects for development focused on governance, urbanism and incidence.
He has work experience in the field of development cooperation, focused on donors from the European Union and the United States government.
From August 2020 to September 2021, he was an official of the United Nations system in Guatemala at the International Organization for Migration (IOM).
Currently, he is a scholarship holder of the German Exchange Service -DAAD- and a student in the Master's Degree in Conflict Resolution, Peace and Development at the United Nations University for Peace, Costa Rica.