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CICIACS Proposal Shot Down
Guatemala Human Rights Commission
UPDATE VOL 16 NO 16
8/15/04

On August 6, after only a day and a half of deliberation, the Guatemalan Constitutional Court (CC) announced that the agreement signed by the Guatemalan government and the United Nations to create the International Commission to Investigate Illegal Bodies and Clandestine Security Apparatuses (CICIACS) violates the Constitution and thus cannot be ratified by the Guatemalan Congress. The court’s decision was rushed because, although the proposal was sent to the court two months ago, the analysis of the agreement began on August 4, only three days before the approaching deadline.

Human rights groups in Washington and Guatemala have criticized Berger’s government for failing to advocate strongly for the accord before the Guatemalan public and Congress. At a July meeting with human rights groups at the Guatemalan Embassy in Washington, D.C., Vice President Eduardo Stein said the government was advocating for the proposal behind the scenes. But the government apparently did not emphasize to the court the importance of the decision on the accord and the impending nature of the deadline for ruling on it. According to reports in the Guatemalan press, Berger was surprised himself at the international interest in the accord. He reportedly told media sources after his July trip to Washington, D.C., that he was surprised at the level of interest in CICIACS expressed by US Congress and human rights advocates.

The proposal, originally signed under the former government of Alfonso Portillo, was defeated by two commissions of the Guatemalan Congress in early May, on the grounds that it was unconstitutional. President Óscar Berger then sent the proposal to the Constitutional Court two months ago and asked the court to determine if, in fact, the proposal violated the Constitution and, if so, which aspects were problematic. According to one judge, “Essentially, nearly all of it is incompatible with the Constitution.”

The unconstitutional aspect cited by the judges included an article in the agreement that would have granted diplomatic immunity to international CICIACS officials, as well as an article that would have given CICIACS the authority to initiate criminal investigations. According to the judges’ interpretation of the Constitution, that authority is limited to the Public Prosecutor’s Office (MP).

In response to the ruling, a coalition of nongovernmental organizations in Guatemala pointed out that the decision was filled with errors and demonstrated inconclusive reasoning and a lack of in-depth analysis. The groups pointed out that the judges focused on the commission’s process of investigation rather than its purpose. They also noted that the CC did not define CICIACS as an international human rights convention, which would have made it subject to article 46 of the Guatemalan Constitution, which recognizes that international human rights conventions have preeminence over national law. There was an entire paragraph in the agreement that the CC said they did not understand and thus ignored.

The CICIACS agreement has sparked argument since its proposal in January 2003. Human rights defenders, who claim that the clandestine groups or modern-day death squads are responsible for the majority of the human rights violations and the escalation of violent crime in Guatemala, will continue to push for the commission. Human Rights Ombudsman, Sergio Morales, stated that the CC’s ruling is not the end of CICIACS and said he would work on a new proposal that would be in accordance with the Constitution. While Morales said he would respect the ruling, he added that the CC should feel responsible for the consequences of denying CICIACS, as so far this year there have been over 2,500 violent deaths in Guatemala.

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