Guatemalan Court Blocks President’s Attempt to Expel Anticorruption Panel Leader

CICIG Commissioner Iván Velásquez speaks at the UN Embassy in Guatemala
Credit: US Embassy via Wikimedia Commons

On August 29, Guatemala’s Constitutional Court issued a temporary injunction to block President Jimmy Morales’ expulsion order against Iván Velásquez, head of a United Nations anticorruption panel, who just days earlier announced his intent to investigate Morales for alleged campaign finance violations in 2015. [Al Jazeera; New York Times] The UN International Committee against Impunity in Guatemala (known by its Spanish acronym CICIG) was formed 10 years ago to address the pervasive corruption problems in Guatemala. [Al Jazeera] In furtherance of its mission, CICIG currently seeks to strip Morales of his official immunity so that he may face a campaign finance investigation. [Washington Post] Morales announced his decision to expel Velásquez on August 27, citing “the interests of the Guatemalan people” and his aim to “strengthen[] . . . the rule of law and our institutions.” [Al Jazeera] The expulsion order sparked protests in defense of Velásquez and continues to draw international criticism. [New York Times] Representatives from the United Nations, the Inter-American Commission on Human Rights (IACHR), and the European Union (EU) have condemned Morales’ actions as beyond the scope of his authority and an unjustified interference with the work of CICIG. [UN News Centre; OHCHR Press Release; IACHR Press Release (in Spanish); EU Press Release]

Current Situation

President Morales’ order to expel Iván Velásquez was issued on the heels of Morales’ declaration of Velásquez as a persona non grata (Latin for “an unwelcome person”). [Washington Post] In blocking the order, Guatemala’s Constitutional Court negated Morales’ persona non grata declaration, ruling that it was improperly issued. [Washington Post] On August 28, the day before the Court made its decision, Morales announced on social media that he would abide by the Court’s ruling. [Washington Post; New York Times]

The decision has placed increased pressure on Morales to cooperate with CICIG as it conducts investigations into allegations that Morales failed to report anonymous contributions during his 2015 presidential campaign. [Washington Post] In order for the investigations to move forward, Morales’ immunity as a public official must be removed. [Washington Post] Guatemala’s Supreme Court must decide whether or not to send the petition requesting the removal of Morales’ immunity to Congress; if it does, Congress must then approve the petition by a two-thirds vote for the request to be granted. [Washington Post]

Commentary

UN Secretary General António Guterres, who has repeatedly expressed his confidence in both Commissioner Velásquez and the work of CICIG, was “shocked” to learn about the expulsion order. [UN News Centre] Guterres fully expects Velásquez, who has “made a decisive contribution to strengthening justice sector institutions in Guatemala,” to be treated respectfully by Guatemalan authorities as an international civil servant. [UN News Centre]

UN High Commissioner for Human Rights Zeid Ra’ad Al Hussein was “deeply disturbed” by President Morales’ recent actions and urged Guatemala to “allow CICIG to carry out its work unimpeded and to take steps to guarantee the protection of human rights defenders, judicial officials . . . and CICIG’s staff” to ensure full respect of human rights and the rule of law. [OHCHR Press Release]

The IACHR expressed its concern about the lack of legal justification behind Morales’ decisions. [IACHR Press Release] The Commission went on to comment that in situations that may affect an individual’s freedom, as here, due process protections must be enforced. [IACHR Press Release] Moreover, in the IACHR’s view, Velásquez should never have been ordered expelled from Guatemala by virtue of his work as a human rights defender. [IACHR Press Release] The IACHR conveyed its appreciation for CICIG’s work and emphasized the necessity of establishing protective measures such that individuals defending justice can do so without being threatened or intimidated. [IACHR Press Release]

The EU issued a statement in support of CICIG, which “has played a pivotal role in the fight against corruption and impunity.” [EU Press Release] The statement underscored the importance of minimizing political interference with CICIG’s work and pledged the EU’s commitment to Guatemala as it continues to tackle corruption and impunity. [EU Press Release]

Background on CICIG

CICIG, which was established in 2007 pursuant to an agreement between the United Nations and the Guatemalan government, is an independent international body tasked with investigating illicit security forces affecting human rights in Guatemala, assisting the State in disbanding such groups, and making public policy recommendations to prevent the groups’ return. See CICIG, Mandate. Its overall goal is to strengthen Guatemala’s justice system and address issues of corruption and impunity that have plagued the nation since its 36-year civil conflict ended in 1996. See CICIG, Background.

In fulfilling its mandate, CICIG may collect relevant information, promote criminal prosecutions, offer technical assistance to State agencies, and issue recommendations, among other abilities. See Agreement Between the United Nations and the State of Guatemala on the Establishment of an International Commission against Impunity in Guatemala (“CICIG”) (2006), art. 3. It is composed of a Commissioner, a secretariat, and other specialized staff as necessary. See id. at art. 5.

Corruption & Human Rights

In recent years, UN human rights bodies have begun to recognize the link between corruption and human rights, and to call for a human rights-based approach to anti-corruption. The Human Rights Council and the Office of the High Commissioner on Human Rights have both found that there is a connection between issues of corruption within a State’s government and the ability of its people to fully enjoy their human rights. See UN Human Rights Council, Resolution 23/9, The negative impact of corruption on the enjoyment of human rights, UN Doc. A/HRC/RES/23/9, 20 June 2013; OHCHR, The Human Rights Case against Corruption (2013), at 4-7. The OHCHR has stated that corruption can negatively impact such rights as the rights to freedom of expression and assembly, participation in public affairs, and access to information, among others, and recommends a human rights-based approach, placing international human rights law and principles at the center of anti-corruption efforts. See OHCHR, The Human Rights Case against Corruption (2013), at 4-7.

The Human Rights Council Advisory Committee has, at the direction of the Human Rights Council, studied the connection between human rights and corruption. The Advisory Committee recognizes the importance of a human rights-based approach because it brings victims to the center of anti-corruption efforts and establishes States’ obligations to address the negative impacts of corruption. See UN Human Rights Council, Progress report of the Human Rights Council Advisory Committee on the issue of the negative impact of corruption on the enjoyment of human rights, UN Doc. A/HRC/26/42, 14 May 2014, paras. 18-19. The Advisory Committee has also made recommendations to the Human Rights Council to develop a special procedures mandate around the issue of the impact of corruption on human rights and to integrate discussions on anti-corruption into the Universal Periodic Review process. See UN Human Rights Council, Final report of the Human Rights Council Advisory Committee on the issue of the negative impact of corruption on the enjoyment of human rights, UN Doc. A/HRC/28/73, 5 January 2015, paras. 52, 53.

Guatemala’s International Legal Obligations

Guatemala is a State party to the UN Convention against Corruption, which obliges States to collaborate with international organizations to prevent corruption; to criminalize, or consider criminalizing, certain corrupt acts involving State officials, including the obstruction of justice; and to balance immunity of public officials and effective investigation and prosecution of crimes related to corruption under articles 5, 15-17, 19, 25, and 30. Additionally, Guatemala is a State party to the Inter-American Convention Against Corruption, which similarly calls on States parties to criminalize certain corrupt acts by public officials.

As a State party to the International Covenant on Civil and Political Rights, Guatemala is obligated to respect the rights of individuals lawfully within its territory not to be expelled without justification and due process. The right to due process is also enshrined in the American Convention on Human Rights, to which Guatemala is a State party.

Guatemala is also a State party to the International Convention on the Elimination of All Forms of Racial Discrimination; the International Covenant on Economic, Social and Cultural Rights; the Convention on the Elimination of All Forms of Discrimination against Women; the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; the Convention on the Rights of the Child; the International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families; and the Convention on the Rights of Persons with Disabilities.