Challenges to “Safe Country” Strategy in Central America Mounting

By Fulton Armstrong

San Ysidro

Processing at the San Ysidro Port of Entry/ U.S. Customs and Border Protection/ Flickr/ U.S. Government Works

Challenges to the U.S. government’s “Asylum Cooperation Agreements” (ACAs) with Central American countries – under which asylum seekers approaching the U.S. border are sent to camps in the Northern Triangle – are mounting fast, but the administration of President Donald Trump does not appear likely to budge significantly from its current approach. Under the threat of loss of $143 million in aid to the three Central American countries, Guatemala signed its agreement under former President Jimmy Morales last August; a similar accord with Honduras is to “come online any day,” according to U.S. officials; and El Salvador is also deep in negotiations. (Aid has been restored.) The ACAs stipulate that asylum seekers apply for asylum in the “first safe country” they enter after fleeing their own. As a result, the United States has sent about 800 persons of various nationalities to Guatemala.

  • Immigration and human rights advocates have condemned the agreements. They report that Guatemala – where most asylum seekers have been sent so far – lacks the ability to process them. Human Rights Watch recently reported, moreover, that individuals repatriated to El Salvador since 2013 – as envisioned by the ACAs – have been assassinated at an alarming rate. The group has confirmed 138 cases of individuals killed after deportation and another 70 beaten, sexually assaulted, extorted, or tortured.
  • The chairs of the U.S. House Committee on Foreign Affairs and relevant subcommittees (all Democrats) have called the ACAs “illegal, dangerous, and antithetical to U.S. values.” In a letter to Secretary of State Pompeo, they said that U.S. law requires that asylum seekers have “access to a full and fair procedure for determining a claim to asylum” – which the Guatemalan facilities lack. The Congressmen assert, moreover, that U.S. law requires adherence to international law on non-refoulement, which mandates that asylum seekers cannot be sent to a country in which they will face further persecution.
  • The workers’ union representing 700 U.S. asylum and refugee officers has declared that the agreements and the administration’s implementation of them are a “violation” of international treaty obligations. These are the career specialists on the front line charged with carrying out the policies. The Guatemalan government has raised its own concerns, citing its “very limited capacity” to process asylum-seekers sent there. Newly inaugurated President Alejandro Giammattei has never appeared comfortable with the ACA and has asked Washington for “clarifications” of his country’s obligations under it.

U.S. reaction so far has been to deny anything is wrong. Senior officials say that very few asylum seekers deported to Guatemala are applying for asylum there, with the vast majority instead choosing to return to their home countries. Citing experts, the U.S. congressmen say that less than 4 percent have “been able to seek protection through Guatemala’s overburdened system.” Others report that victims of violence in their home countries face similar prejudices in Guatemala.

  • Apparently to encourage potential asylum seekers to apply for U.S. visas, the administration on March 5 announced it is increasing H2‑B visas for non-agricultural workers this year, with 10,000 reserved for applicants from the Northern Triangle. But if H2‑B visas are issued along the same guidelines as other visas, U.S. consular officers will be required to deny them to applicants they have reason to suspect will try to remain in the United States – as all ACA cases have tried.

The ACAs are a key element of the Trump administration’s efforts to move the “wall” blocking asylum seekers as far off the U.S. border as possible, shifting the burden to the same Central American countries whose poverty, violence, and corruption are driving citizens to flee. However compelling the Foreign Affairs Committee’s arguments that the administration is violating U.S. law and values, the letter’s impact has been blunted by widespread perceptions that the novel coronavirus (COVID-19) is further proof that the United States needs to keep outsiders from entering the country. The Administration is also not swayed by the fact that the U.S. State Department’s own repeated warnings that U.S. citizens limit travel to Northern Triangle countries – because of widespread “violent crime … rape, and narcotics and human trafficking – contradict the assertion that the ACA partners are “safe countries.”

  • Guatemala’s call for “clarification” of implementation guidelines and talks on the final details of Honduras and El Salvador’s arrangements give the administration a chance to make cosmetic adjustments and, perhaps, promise more resources to the designated “safe countries.” But it has given no sign of reconsidering its overall approach. The Trump administration remains as committed as ever to addressing the migration problem by closing the U.S.’ door rather than addressing the underlying conditions in the region driving people to risk their lives to get to the United States. Central American analysts are already deeply concerned that the economic impact of the COVID‑19 pandemic (including 1 percent growth or less), coupled with USAID’s own budget cuts, spell reduced aid and a worsening of the vicious cycle of poverty that drives emigration and empowers illicit actors.

March 17, 2020

Honduras: A Renewed MACCIH with Teeth?

By Eric L. Olson*

President of Honduras, Juan Orlando Hernandez, January 16,

Juan Orlando Hernández, President of Honduras, January 19, 2016/ Flickr/Creative Commons/ https://www.flickr.com/photos/oasoea/24115247729/in/photostream/

As the January 19 deadline for renewing the Support Mission to Combat Corruption and Impunity in Honduras (MACCIH) approaches, the Honduran government — never enamored of it — has a chance to demonstrate a commitment to root out one of the principal problems that undermine the nation’s democratic institutions and the opportunities citizens yearn for.

  • The Organization of American States has been engaged for months in low-profile discussions with Tegucigalpa on the future of MACCIH, created by an agreement between Honduran President Juan Orlando Hernández and OAS Secretary General Luis Almagro on January 19, 2016. Despite concerns that MACCIH lacked the independence and capacity to conduct investigations that its UN-based counterpart in Guatemala (CICIG) once had, it has demonstrated that Honduras can indeed conduct independent, non-partisan investigations into systemic corruption, and begin to prosecute and hold accountable senior officials.

Working with its partner in the Public Ministry, a special anti-corruption prosecutor’s unit (UFECIC), MACCIH has had a key role in 13 major cases involving 124 individuals, including 80 government officials and 44 private citizens. Several cases involve networks of corruption in the Honduran legislature as well as the former first lady (now sentenced to 58 years in prison), and graft and corruption in the country’s public health system (IHSS). The official evaluation of MACCIH’s first four years by the Mesa de Evaluación, a process established by agreement between the Honduran government and OAS, has recommended full renewal.

The brave work of the UFECIC prosecutors, who formalize the investigations that MACCIH first develops, has been crucial. MACCIH screens and recommends the prosecutors and investigators that make up UFECIC, but its mission is to support, not conduct, prosecutions. This distance is intended to strengthen capacity within Honduras’s justice system.

  • Honduran civil society, previously skeptical that MACCIH would work, is now largely on board. The Coalition for the Renewal of MACCIH has issued statements calling for the mandate to be extended — proclaiming ¡Renovación Ya! — as have the National Anti-Corruption Council, the Association for a More Just Society, the Catholic Bishops Conference and its Evangelical counterpart, and others. Even members of the business community, long leery of anti-corruption initiatives, support renewal.
  • At least rhetorically, the United States supports MACCIH renewal. Acting Assistant Secretary of State Michael Kozak and other State Department officials have endorsed it, and Democrats in the U.S. Congress have been strong advocates. Washington’s implicit approval of the Guatemalan government’s dismantling of CICIG, however, remains a concern for MACCIH supporters.

President Hernández’s foot-dragging on renewal has fueled worries. Renewal could be done simply with an exchange of letters in which the government signals its desire to renew the mandate as is; unless the agreement is to be amended, no congressional action or further steps are needed. The delay has given rise to fears that the government is seeking to limit the length of the new mandate (from the current four years to two or even one). There is further concern that the government, with pressure from Congress, seeks to limit the MACCIH mission to citizen oversight functions, prevention efforts, and technical training. These are all important elements of the mission, but the heart and soul of the MACCIH’s success has been its support for the UFECIC and its investigations. To undermine or limit investigations would likely lead to the demise of UFECIC and render the MACCIH toothless.

Renewal of MACCIH — with the investigative elements of its mandate intact — gives President Hernández, who labors under a cloud of allegations about involvement in narcotics trafficking and other illicit practices, an opportunity to demonstrate his commitment to fighting corruption, strengthening the rule of law, and building judicial and democratic institutions. If the mandate is changed, not simply renewed, it will have to be approved again by the Honduran Congress, where odds are long. The Congress has already recommended MACCIH not be renewed and, as the official Mesa de Evaluación documented, it has already attempted to reverse anti-corruption legislation, such as by lowering penalties for misuse of government funds.

  • Hernández has the clout to direct his supporters in Congress, many of whom fear MACCIH’s investigations into their activities, to abandon their obstructionist tactics, while reaching out to opposition legislators who support MACCIH. Alternatively, he could ignore Congress altogether and simply reach an executive agreement with the OAS, something that would carry less legal weight but may preserve MACCIH’s essential elements.
  • The President’s inaction hurts MACCIH and broader anti-corruption efforts as well as Honduras. Failure to push renewal — with teeth — will not only damage his reputation and further erode his legitimacy in the eyes of Hondurans and the international community; it will send a message of hopelessness and despair to Hondurans seeking to build a better future for their country.

January 13, 2020

* Eric L. Olson is Director of Policy, Seattle International Foundation, and a global fellow at the Wilson Center in Washington, DC.

 

Honduras: Facing the Budget Challenges?

By ICEFI and CLALS*

Honduran Lempiras

Honduran Lempiras/ Alex Steffler/ Flickr/ Creative Commons

Honduras’ proposed budget for 2020 reduces support to the country’s most needy – while protecting the military and security agencies – and, particularly if the debate on priorities is not made more inclusive, risks exacerbating already high political tensions and chronic economic mismanagement. On the revenue side, the draft budget shows a drop in tax revenues from 18 percent of GDP in 2019 to 16.5 percent – which, ICEFI has found, is not justified by technical analysis of the circumstances. Government spending – excluding payment on the national debt but including transfers to funds and trusts – equaled 19.7 percent of GDP, compared to 21.5 percent in 2019. (ICEFI estimates that the average government spending in Central America in 2019 will be 18.5 percent.) This drop will affect most public entities, particularly in social spending.

  • Education faces deep cuts. The budget of the Secretariat of Education, for example, will drop from 4.85 percent of GDP in 2019 to 4.49 in 2020. Transfers to public universities are slated to be reduced 23.1 percent from 2019 levels, and scholarships are also on the chopping block – cut 27.5 percent for national and 37.5 percent for international scholarships.
  • Health spending in Honduras – the country with the highest poverty rates in Central America – will decline from 2.39 percent to 2.37 percent at a time that inflation is more than 4 percent. The budget for Infrastructure and Public Services will be hit hardest – cut from 0.82 percent of GDP to 0.40 percent. Capital expenditures or investment will decline 33.5 percent year on year, including 38.5 percent from machinery and equipment and 34.6 percent for construction.
  • One of the only government sectors seeing increases is in the military and security, according to ICEFI. The 2020 budget proposes a 39.6 percent increase from 2019 on military and security equipment.

At first glance, the budget would appear to produce a surplus in 2020 of about 0.4 percent of GDP, which is double that ICEFI estimates for 2019. But factoring in the transfer of resources to the funds and trusts – a more reliable way of tracking fiscal behavior – the deficit will actually be 1.5 percent of GDP. That’s lower than ICEFI’s estimate of the deficit this year (1.9 percent), but it is achieved at the expense of the wellbeing of a majority of the Honduran population.

If approved and implemented as proposed, the budget will set back several strategic goals that the Honduran government itself has set. The budget confirms the government’s desire to reduce the public deficit principally through cuts to social spending and some capital expenditures – even though the approach contravenes commitments made under the UN Convention of the Rights of the Child and General Comment No. 19 (2016) on public budgeting for the promotion of children’s rights, which establishes that states should not deliberately adopt regressive measures that undermine child’s rights.

  • Although some provisions of the budget in principle could expand production of goods and services, they do not clearly point to either social inclusion, especially in terms of gender, age, and ethnicity. Budget allocations dedicated to attention to women are very low, equaling barely 0.19 percent of all spending. Neither does the budget focus on achieving any particular Sustainable Development Goals (SDGs).

The transparency and inclusiveness of the budget debate in the Honduran Congress will be crucial to determining the longer-term impact of this budget on human rights and the provision of public goods and services to the most vulnerable Hondurans, including children, adolescents, and women. Executive and Congressional decisions on the budget will shift the country’s path toward prosperity and governance – or continue down a path of instability and tension. More breaks for those capable of paying taxes, while cutting essential services to those who cannot, will be a step in the wrong direction. At a minimum, Honduran leaders should demonstrate the benefits of such moves will outweigh the costs. The legitimacy and effectiveness of the Honduran budget will depend on a broad, inclusive, and honest debate.

November 26, 2019

* The Instituto Centroamericano de Estudios Fiscales conducts in-depth research and analysis on the region’s economies. This is the second in a series of summaries of its analyses on Central American countries.

The OAS and the Crises in Bolivia and Chile: Power Politics and Inconsistencies

By Stefano Palestini Céspedes*

Protests in Chile, October 2019

Protests in Chile, October 2019/ Carlos Figueroa/ Wikimedia Commons/ https://es.wikipedia.org/wiki/Archivo:Protestas_en_Chile_20191022_07.jpg

As political crises emerge one after the other in Latin America, the Organization of American States (OAS) is showing inconsistent behavior based on ideological rifts and power politics. This inconsistency – evidenced by the OAS’s role in the ongoing crises in Bolivia and Chile – undermines its mandate to protect human rights and democracy throughout the hemisphere.

In Bolivia, violence spread in the streets of various states after the opposition accused incumbent President Morales of manipulating the results of the October 20 elections. The OAS Electoral Mission reported possible irregularities, and both the Permanent Council and the Secretary General pressed the government to authorize an audit of the electoral procedures and a vote recount. Morales consented to both requests.

  • The same accusations of electoral irregularities were made two years ago in the Honduran presidential election, but a coalition of states headed by the United States swiftly recognized President Hernández – delegitimizing the OAS electoral mission and the Secretary General’s call for new elections. Those same countries have now pressed Morales, first for a recount of votes and later for new elections. When the OAS Electoral Mission confirmed the existence of electoral irregularities on November 10, the Bolivian military withdrew support for the government, prompting Morales’s resignation – an outcome radically different from that in Honduras.
  • Despite political violence and recurrent accusations by Morales of unconstitutional alterations to the constitutional order voiced by the Bolivian foreign minister at the OAS headquarters, neither the Secretary General nor OAS member states invoked the Inter-American Democratic Charter. President Morales did not explicitly invoke the Charter, thinking that the crisis would follow the same course as in Honduras, or that the military remained supportive. Either way, he was wrong.

In Chile, in contrast, the police have engaged in systematic violations of human rights since an unprecedented social uprising that started on October 18. Twenty-three people have been killed, 1,950 have been injured, and 180 have suffered eye injuries from rubber bullets fired upon protesters by police – many losing their sight. The Inter- American Commission on Human Rights issued a declaration regarding the violations of human rights during the State of Emergency imposed by President Sebastián Piñera in the aftermath of the uprising. But the OAS political bodies have remained silent.

  • Neither Secretary General Almagro nor the Permanent Council have issued a single declaration of concern or condemnation regarding the situation in Chile. Almagro has refrained from convening the Permanent Council or the General Assembly, but he has loudly claimed the existence of destabilization attempts organized by Cuba and Venezuela (which he called “Bolivarian breezes”). To be sure, issuing such a statement without providing evidence or convening the political bodies of the organization jeopardizes the credibility of the OAS and breeds conspiracy theories. In a recent interview, President Piñera also subscribed to the thesis of foreign intervention in Chile’s protests without providing any evidence. The Chilean Attorney General confirmed that the government has not provided any information about the action of foreign groups.

The inconsistency displayed by the OAS in the handling of the political crises in the region suggests that the OAS applies different standards to similar situations. In fact, the organization is split into two coalitions: a larger and stronger one composed of right-wing governments that embrace or accept the foreign policy of U.S. President Donald Trump based on a revival of the Monroe Doctrine; and a smaller, weaker one composed of states with leftist and centrist governments with an anti-imperialist or a non-interventionist rhetoric.

  • Breaches of democracy and human rights violations exist on both sides of the rift, but the OAS political bodies seem to focus only on the side that happens to be weaker. This is bad news for those that would like to see in the OAS an honest broker and mediator in political crises, no matter the ideological color or the power of the concerned state. If this trend continues, it is also bad news for the protection of human rights and democracy and for multilateralism in the region.

November 11, 2019

* Stefano Palestini Céspedes is an assistant professor at the Institute of Political Science, Catholic University of Chile.

Latin America: Grappling with Environmental Displacement

The Honduran refugee caravan crowds a bridge in October 2018

Honduran Refugee Caravan/ October 21, 2018/ Flickr/ Creative Commons/ https://www.flickr.com/photos/boyitchy/31600503428/

By Robert Albro*

Latin America and its faith-based organizations, seeking to expand the definition of refugee beyond just people forced to leave their countries in the face of political persecution, are making slow but steady progress promoting policies that deal with the increasingly serious issue of human displacement as a consequence of environmental change.

  • Since 1951, a large majority of Latin American countries have enshrined the right to asylum in their national constitutions, and the region emerged in the 1980s as a leader in efforts to broaden international standards for refugees and migrants. In 1984, the Cartagena Declaration on Refugees, for example, enlarged the concept of refugees to include people “who have fled their country because their lives, safety, or freedom have been threatened by generalized violence.” A series of conferences organized by the UN High Commissioner for Refugees (UNHCR) produced further breakthroughs during conferences in San José and San Salvador, including rights-based criteria involving, for example, gender and indigenous identity.

Over this decade, the coincidence of surges in migration from the “Northern Triangle” of Central America and international action on the environment – including Pope Francis’s 2015 encyclical on climate change, Laudato Si – have encouraged reassessment of the traditional distinction between “refugee” and “migrant.” Among similar initiatives in the Andean region, in 2014 Bolivia’s migration law introduced legal protections for “groups of people displaced from one country to another for climate reasons, when there exists a risk to life, as a result of nature, environmental, nuclear or chemical disaster, or famine.” What to do about people displaced across international borders as a result of life-threatening rapid-onset natural disasters has become an increasing focus of attention.

  • Discussions in conjunction with the Framework Convention on Climate Change (UNFCCC) – a major component of the 2016 Paris Accord – have given new momentum to addressing environmental migration. Participants called for greater understanding of “climate change induced displacement, migration, and planned relocation,” even though emphasis in multilateral deliberations has shifted to “disasters” and away from “climate change.” 
  • Observers have credited Latin American church groups – as “specialists in the language of ethics” and “sources of moral authority” – with playing an important role in normative deliberations during the UNFCCC processes. A hemispheric dialogue led by the Organization of American States, called the “Protecting Our Home” initiative, was jointly launched with the Holy See after the Pope’s encyclical.

Faith-based responses both to environmental conflict and to the plight of migrants have been significant. Religion’s impact upon international deliberations regarding environmental migration is likely to continue growing as long as religious values are translatable to secular humanitarian efforts. Even when members of religious communities are lumped in with the rest of “civil society,” their emphasis on moral values, their ability to intervene on behalf of affected populations, and their role as service providers serve them well as proponents of efforts to include victims of environmental disaster and climate change as deserving recognition and support from governments and the international community. The “moral authority of faith leaders” is also less about the introduction of alternative moral valuations than a strategic advantage in efforts to gain access to and build trust with victims of humanitarian emergencies. 

  • There is, however, an additional role that faith-based actors have yet to embrace as the international response to increasing numbers of environmental migrants evolves. As multilateral deliberations increasingly consider “loss and damage” as a result of environmental disasters, including climate change, they are unsurprisingly limited to accounting for the loss of livelihoods and material assets, such as farms or homes. To date, little attention has been given to the consequences of non-economic or intangible loss, including loss of community identity, social cohesion, and traditional knowledge. Religion’s focus on moral and cultural questions of meaning and value make it a potential resource in coming to terms with the consequences of intangible loss. 

November 1, 2019

* Robert Albro is the Research Associate Professor at CLALS.

Latin America: Drug Traffickers Vary Routes as Circumstances Warrant

By Carolina Sampó

U.S officers confiscating narcotics in the Eastern Pacific

Crews from the U.S. Coast Guard Cutter Waesche offload nearly 660 kilograms of narcotics, Feb. 2, 2015 / Coast Guard Compass / Creative Commons / https://coastguard.dodlive.mil/files/2015/07/1785654.jpg

Drug traffickers, who have proven agile at avoiding detection and interdiction in the past, are increasingly creative in moving their product to market through circuitous routes – even moving cocaine through Africa on its way to the United States. Since cocaine is produced only in Colombia, Peru, and Bolivia but consumed in many other countries, the criminal organizations run robust, expansive distribution networks. Routes are not chosen by chance; the traffickers are rational actors who evaluate the risks and advantages depending on circumstances, just as they did by shifting the flow to Central America and Mexico in the early 2000s when counternarcotics operations made the Caribbean less hospitable. My review of the criminal organizations’ shifts indicates they see several basic factors as key to determining a low-risk route:

  • The weakness of the state used as a transit route is key. A state without control of its borders and without effective presence in significant parts of its territory is particularly vulnerable to domination by criminal organizations. Corruption and impunity in government and society in general are also major factors. The availability of logistics networks controlled by local criminal organizations guarantees the secure movement of drugs. To make the business sustainable in the long term, traffickers want groups to have cooperative relations, not competitive tensions, and solid control over operating areas. While some instability has proven helpful to traffickers’ expansion, too much undermines their confidence. Evidence suggests, for example, that the deepening crisis in Venezuela has persuaded some traffickers to choose Brazilian routes. 
  • The countries of the “Northern Triangle” of Central America – Guatemala, Honduras, and El Salvador – are vivid examples of how state weaknesses, corruption, and impunity open the door to Mexican and Colombian criminal organizations’ activities. Traffickers hire smaller criminal organizations – such as maras –to provide them the local support they need. In Venezuela, corruption has long been a factor, but the government’s inability to exercise sovereignty in border areas is increasingly a problem. The Colombian government does not exercise control over large parts of its national territory, and the breakdown of its peace agreement with the FARC suggests the situation will worsen. 

Some trafficking routes seem counterintuitive. Some of the cocaine reaching North America, for example, does not reach that market through Central America. My research indicates that it leaves South America through Brazil or Venezuela and goes to Western Africa, from which it is redirected to a final destination, sometimes entering the United States through Canada. 

  • The UN Office on Drugs and Crime (UNODC) reported last year that only 39 percent of the cocaine reaching the United States in 2016 came through Mexico, compared to 70 percent in 2013. Even though it may seem absurd, especially considering the distances involved in shipping through Africa, criminal organizations reduce risks if they do not take the Central American route. They are apparently using this new route also to create a wider market – some of the drug may go to Russia, for example, or to Asia and even Oceania – as well as to satisfy demand on the African continent. 

Governments seeking to stop the drug trade have not shown as much agility as have the traffickers, who have proven over the years that they can adapt to eradication, surveillance, and interdiction – which remain central elements of governments’ strategies. Colombia’s production surge, despite multi-billion-dollar programs over the past 20 years, shows that much work remains on strengthening the state and reducing corruption and impunity there as well as in transit nations. Addressing drug use as a public health challenge holds promise but requires political commitment that most big consumer countries have so far lacked. Efforts to follow the money trail and freeze suspects’ accounts help but haven’t dealt a mortal blow. No single tactic will work, and no strategy will work as long as governments’ partners show the vulnerabilities that traffickers are so adept at exploiting.

September 27, 2019

*  Carolina Sampó is Coordinator of the Center for Studies on Transnational Organized Crime (CeCOT), International Relations Institute, La Plata National University, and a researcher at the National Scientific and Technical Research Council (Conicet) and Professor at the Buenos Aires University.

Latin America: The Perils of Judicial Reform

by Aníbal Pérez-Liñán and Andrea Castagnola*

Former President of Chile and current head of the United Nations OHCHR Michelle Bachelet addresses the Chilean Supreme Court in 2015

Former President of Chile and current UN High Commissioner for Human Rights Michelle Bachelet addresses the Chilean Supreme Court in 2015/ Gobierno de Chile/ Flickr/ Creative Commons/ https://www.flickr.com/photos/gobiernodechile/22180910394

Conventional wisdom that institutional reforms always strengthen the judiciary is not supported by the facts. A constitutionally fixed number of justices is widely thought to make “court packing” more difficult, and longer terms in office supposedly protect judges from partisan trends. Nomination processes that involve multiple actors should produce moderate justices; high requirements for impeachment should protect judges from legislative threats; and explicit powers of judicial review should assure politicians’ compliance with judicial decisions. Our research, however, shows that institutional reforms often undermine judicial independence, even when they appear to improve constitutional design along these crucial dimensions.

  • Countries with longer democratic traditions such as the United States, Chile, Costa Rica, and Uruguay display low turnover: few justices leave office in any given year, and their exits appear to follow a random pattern. But countries like Bolivia, Honduras, Guatemala, El Salvador, and Paraguay – all of which nominally protect judges from political pressures – display abrupt patterns of judicial turnover. On repeated occasions, a majority of the court has left in the same year, allowing for a complete reshuffle. About half of all exits in our sample took place in years when more than 50 percent of a court left at once, mostly due to political pressures.
  • Some constitutions create turnover by design. Until 2001, for example, Honduran justices served for four years, concurrent with the presidential term. However, less than 30 percent of court reshuffles can be explained by constitutional rules. In Argentina, even though the Constitution grants Supreme Court justices life tenure, presidents forced a majority of justices out of office in 1947, 1955, 1958, 1966, 1973, 1976, and 1983.

Our project analyzed the tenure of almost 3,500 justices serving in Supreme Courts and Constitutional Tribunals in the Western Hemisphere since 1900. We found – against our expectations – that several constitutional reforms increased the likelihood of turnover in the high courts. Because major reforms produce turnover in Supreme Courts and Constitutional Tribunals, they create new opportunities for parties to appoint loyal judges and politicize the courts.

  • Constitutional reforms that involve more actors in the nomination of justices (i.e., “multilateralize” the process) also increase turnover in the high courts. Reforms that constrain the removal of justices (for example, requiring supermajorities for their impeachment) paradoxically have prompted the exit of justices in democracies. Constitutional reforms that granted courts explicit powers of judicial review of government actions increased judicial instability, and reforms that grant life tenure to justices on average created turnover in the high courts, particularly when adopted under dictatorships.
  • Two basic reasons seem to explain these paradoxes. In the short run, reformers exercise (and abuse) “constituent” power, restructuring the courts in ways that force the resignation of incumbent justices or create new vacancies. In the long run, formal constitutional protections for the judiciary create a strategic trap. If parties can use informal instruments, such as threats and bribes, to induce the resignation of judges, their incentives to deploy those blunt instruments are greater when justices are completely isolated from other forms of political influence.

Some features of constitutional design – including life terms and supermajority requirements to impeach judges – do explicitly protect justices against purges. Other constitutional features, however, create incentives for the political capture of high courts. Greater powers of judicial review, for example, make courts politically relevant and, therefore, more important targets. A constitutionally fixed number of seats prevents court “packing” but encourages purging as an alternative. Appointment procedures controlled by the President and Congress make purges profitable for them. Irrespective of their stated goals, constitutional amendments and replacements offer a window of opportunity to reorganize the composition of the judiciary.

  • Judicial purges occasionally pursue desirable goals, like the removal of judges who have been corrupt or obstructed transitions to democracy, but a recurrent pattern of politicized replacements inevitably produces a weak judiciary, creating an unstable interpretation of the laws and the Constitution.

July 9, 2019

* Aníbal Pérez-Liñán teaches political science and global affairs at the University of Notre Dame, and Andrea Castagnola teaches judicial politics at the Universidad Torcuato Di Tella, in Buenos Aires. Their project was supported by the National Science Foundation. Conclusions expressed here do not necessarily reflect the views of the NSF.

Central America: Hybrid Anti-Corruption Commissions Can Work

By Chuck Call*

Map of Guatemala, Honduras and El Salvador, with Guatemala and Honduras territory being covered by photos of well-known politicians being arrested.

Prospects for an International Commission against Impunity and Corruption in El Salvador: Lessons from Neighboring Countries in Central America logo / CLALS / https://www.american.edu/centers/latin-american-latino-studies/Prospects-for-an-International-Commission-against-Impunity-and-Corruption-in-El-Salvador-Lessons-from-Neighboring-Countries-in-Central-America.cfm

If newly inaugurated Salvadoran President Nayib Bukele pursues his campaign calls for the creation of a hybrid international commission to fight corruption and strengthen judicial institutions, he will face tough challenges from entrenched interests. However, the experiences of Guatemala’s CICIG and Honduras’s MACCIH show that a strong investigative mandate, close partnership with vetted national prosecutors, strong international backing, and transparent accountability will increase the chances of success of any such mission. (Full text of the study is here and aquí.) CICIG and MACCIH were born of political crises, but they were given different authorities, faced different expectations, and delivered different results.

  • Both missions have had historic investigative and prosecutorial achievements – bringing former and current senior officials to account as never before and putting powerful elites on notice that impunity will not be tolerated. CICIG has dismantled corrupt networks, exposing their reach into the Congress and the Cabinet, indicting hundreds. MACCIH has helped indict dozens of legislators and a former First Lady. Working with special units of prosecutors, they have also contributed to local institutional capacity to root out corruption.

Both CICIG and MACCIH have struggled against the pressure tactics of the many corrupt officials, legislators, and economic interests who most feel threatened by them. In contrast to Guatemala, where CICIG was key to the adoption of several laws that served as a foundation for effective investigation of organized crime, the Honduran Congress has refused to pass such laws. Legislatures in both countries have changed laws specifically to vitiate prosecutions (including of themselves) advanced by the missions. Corruption among judges, especially in Honduras, has made winning convictions extremely difficult. After CICIG shifted its sights beyond politicians to powerful businessmen a few years ago, Guatemalan elites launched a campaign to smear CICIG as an incursion on sovereignty and a socialist plot. Both missions have confronted constitutional challenges.

Key lessons from CICIG and MACCIH’s experience include:

  • Realistic expectations are important. The legal and diplomatic negotiations and logistics necessary to set up “hybrid” units combining domestic and international investigators slowed both entities’ starts. It took over two years for CICIG to secure its first convictions, and MACCIH’s investigations have led to only 12 cases, although these are major corrupt networks. The focus of many Hondurans on ousting President Juan Orlando Hernández has obscured some of the important cases advanced by the mission and its Honduran partners.
  • Anti-impunity missions can threaten systems of political and economic power in ways that go beyond judicial processes. Despite the technical and juridical character of both the missions, they have exposed in detail how criminal enterprises interact with political parties, elected, and appointed officials, and current and former security officials. The missions have also detailed how legislators receive illicit campaign funds and how they fraudulently spend public monies, forcing changes to these decades-old corrupt practices. In Guatemala, the prosecutions have dismantled corrupt networks involving cabinet ministers, generals, top business leaders and the former president and vice president, altering the political profile of parties and undermining the ability of prominent and corrupt elite structures of power to operate.
  • Strong partnerships with national prosecutorial units and with civil society are crucial for success and sustainability. CICIG and MACCIH could not have achieved what they did without close cooperation with carefully selected and vetted prosecutorial units. Those units, especially the UFECIC in Honduras, carried out much of the investigation and led the prosecution in both countries. The legacy of the hybrid missions rests in the future of these empowered professionals and society’s raised expectations of clean behavior from their public officials. Both missions have generated a greater sense that high-level politicians, officials and elites can be imprisoned for corruption and organized crime. Yet these missions have not heeded or informed civil society as much as they might have. Moreover, these experiences and the likely end to both missions in the coming months show that civil society is vital to educating society on the importance and possibility of accountable governance, and for demanding it from politicians and the justice system.
  • International sponsorship brings both advantages and challenges. The association with the UN (for CICIG) and the OAS (for MACCIH) has brought valuable political legitimacy, professional capacity, and needed resources. But it has also brought complications. In the case of MACCIH, slow and politicized appointments, questionable allocation of resources, and excessive day-to-day oversight from Washington, not to mention personal spats and undue interference by specific member states, have undermined performance and credibility. CICIG’s status as a non-UN body gave its commissioner the independence needed to take on tough cases and ignore political considerations. However, that lack of accountability is seen as having contributed to the alienation of many sectors in ways that left it politically vulnerable. Wavering U.S. support for CICIG since 2017 has emboldened the missions’ critics.

The experiences of CICIG and MACCIH show that, despite ups and downs, hybrid international-national missions can help a society fight corruption. In Guatemala and Honduras, these commissions achieved more than most observers originally predicted by dint of the vision and discipline of their leaders and sponsors as well as the work of courageous national officials and civil society groups often risking their livelihoods and lives. Their performance also shows that getting the mission right and sustainable takes time, communication, and strong partnership with national prosecutors. The main challenge now is that corrupt officials and businesses have become proficient at blocking investigations, prosecutions, and convictions.

  • Creating an International Commission against Impunity in El Salvador (CICIES) may be harder now than before CICIG and MACCIH scored their victories. However, President Bukele may have a historic opportunity to press the country’s two main (but weakened) parties, ARENA and the FMLN, to approve a strong mandate that fits the country’s particular needs. Experts advising then-President Mauricio Funes (himself ironically now on the lam for alleged corruption) concluded in 2010 that the country’s Constitution provides the basis for an international mission with a sufficiently strong investigative powers to have impact. The Guatemalan and Honduran missions show that a strong mandate and significant national and international backing could improve help El Salvador’s justice system reduce corruption and impunity. Such efforts may also have comparable impact in exposing in dirty detail, and perhaps reforming, unaccountable and exclusionary systems of political representation.

* Chuck Call teaches International Peace and Conflict Resolution at American University, where he directs a Center for Latin American & Latino Studies project analyzing MACCIH and anti-corruption efforts in Honduras.

U.S.-Central America: Suspending Aid Won’t Help

By Joseph Wiltberger*

Honduran President Juan Orlando Hernández, U.S. Vice President Joe Biden, Guatemalan President Jimmy Morales, and El Salvador President Salvador Sánchez Cerén during a Northern Triangle meeting on January 14, 2016

Honduran President Juan Orlando Hernández, U.S. Vice President Joe Biden, Guatemalan President Jimmy Morales, and El Salvador President Salvador Sánchez Cerén during a Northern Triangle meeting on January 14, 2016 / https://commons.wikimedia.org/wiki/File:Reuni%C3%B3n_Tri%C3%A1ngulo_Norte_con_Vicepresidente_Biden2.jpg / Creative Commons

President Trump’s recent announcement to cut off U.S. aid to Guatemala, Honduras, and El Salvador – intended to pressure those governments to stop migrant caravans headed for the U.S.-Mexico border – would suspend and divert an estimated $700 million dollars in funds directed mainly to regional security and economic programs with mixed impacts on migration. A comprehensive impact evaluation of recent U.S. aid to the region has not yet been conducted, so the consequences of this move are open to debate. While some of the aid may help those vulnerable to migration, other allocations to the three countries may be counterproductive to slowing migration.

The three countries have received around $2 billion in aid since 2015, when former U.S. Vice President Joe Biden initially committed Washington’s contribution to the Alliance for Prosperity Plan (A4P) in response to a surge in the migration of Central American families and unaccompanied minors. The A4P, a document drawn up by the Inter-American Development Bank and the three nations’ governments, has guided most of the U.S.’s strategic aid allocations to the region. The U.S. Congress allocated about $750 million in assistance in fiscal year 2016, $655 million in 2017, and $450 million in 2018. About a third of those funds have been aimed at improving citizen security through support for police, the judicial sector, and violence prevention programs. Roughly another third has been geared toward promoting economic development, and the remainder has been split mainly between anti-corruption efforts and support for military personnel through training and arms to fight drug trafficking and human smuggling.

  • NGOs working with communities susceptible to migration complain that the A4P was drafted by Central American leaders without their input, and that its framework – also reflected in U.S. aid priorities – favors elite business and political interests. It gives tax incentives to foreign investors and, opponents say, makes way for resource extraction, maquilas, and other transnational industries dependent on cheap labor and known to contribute to displacement. It directs hundreds of millions of dollars in aid to military and police forces notorious for human rights violations that are rarely prosecuted, a problem that human rights advocates warn endangers citizens and can force more migration.
  • Some of the programs aligned with the A4P, however, grasp the underlying causes of migration from these nations and show how aid can help if properly channeled. They aim to combat corruption and reduce violent crime by improving judicial systems and government transparency, and with community-based violence prevention programs. Many projects – such as initiatives to create economic, extracurricular, and educational opportunities for at-risk youth, and grassroots endeavors such as cooperatives of women and small farmers – are led by local organizations with a long-standing track record of effective local work on the ground in marginalized areas. One of the more rigorous impact evaluations to date found that USAID-funded community-based gang violence prevention programs were effective.

President Trump’s announcement to cut aid did not reflect an assessment of its effectiveness but instead appears to be a political maneuver to counter domestic political opponents who support aid and to punish the governments he believes have “set up” migrant caravans and should do more to stop them. Ending assistance doesn’t help. U.S. aid to Central America should be focused on proven ways to improve security and economic conditions and to combat corruption and guard against human rights violations – problems that drive the region’s emigration today. Cutting off aid will not stop caravans and runs contradictory to the A4P’s stated goal of addressing the root causes of migration. It is counterproductive to the current administration’s interests. Aid strategies would benefit from setting U.S. political and business interests aside to instead focus more on measures that effectively fight corruption, protect human rights, and provide support for trusted organizations proven to be effectively creating opportunities and safer communities for those most vulnerable to migration.

April 29, 2019

* Joseph Wiltberger is a cultural anthropologist. He holds appointments as Assistant Professor of Central American Studies at California State University, Northridge and as Visiting Scholar at the Center for Comparative Immigration Studies at the University of California, San Diego.

Honduras: MACCIH Still Trying

By Aída Romero Jiménez

MACCIH Feb.22.2019

Luiz Antonio Marrey, Special Representative of the Secretary General, Spokesperson of the MACCIH / Flickr / Creative Commons

MACCIH, the OAS-sponsored mission to support the fight against corruption and impunity in Honduras, continues to investigate cases but with a lower profile than one year ago– and under growing political pressure.

  • Without MACCIH, most observers believe, cases like La Caja Chica de la Dama – for which ex‑First Lady Lobo is awaiting trial in prison – would not have developed. MACCIH is also credited with shutting down the Red de Diputados, a network of Congressmen accused of misappropriating government funds; the Pacto de Impunidad o Fe de Erratas, legislation that effectively shielded Congressmen involved in the Red; the Pandora case, which accused 38 lawmakers of stealing funds from the Ministry of Agriculture; and serious charges against former President Lobo’s brother.
  • Although MACCIH provides important leads and analytical capacity to UFECIC, the special prosecutor unit created to investigate corruption cases, its most valuable support comes from the political cover it provides as an internationally sponsored entity. It is often the public face of anti-corruption efforts in the country, even though Luiz Antônio Guimarães Marrey, the spokesman since last June, and his deputy have significantly scaled back their use of social media since the previous spokesman, Juan Jiménez Mayor, irritated the government with his public profile.

MACCIH’s successes have provoked resistance and, at times, a strong backlash from powerful sectors that feel threatened by its work, not unlike what has occurred with the International Commission against Impunity in Guatemala (CICIG).  When Guatemalan President Jimmy Morales banned the head of CICIG, Iván Velásquez, from returning to the country, several Honduran Congressmen were quick to state that the MACCIH mandate similarly had to be revised, and that its involvement in investigations had to be reigned in to ensure it was not overstepping its limits.  Echoing CICIG’s critics in Guatemala, they also alleged that MACCIH was violating the country’s sovereignty.

  • The Honduran Constitutional Court was already gunning for MACCIH when it ruled in May that UFECIC was unconstitutional. (UFECIC has continued its investigations without further interference, but local observers believe this could change at any moment.)  Congress has also redoubled efforts to reform Article 115 of the General Law of Public Administration to effectively shield itself from Public Ministry investigations into their handling of public funds.  Legislators want to transfer authority for such inquiries solely to the Supreme Auditing Tribunal, which civil society actors claim is sympathetic to the Congressional leadership.
  • The lack of judicial independence has remained a serious obstacle. In a high percentage of cases that go to trial, the charges have been reversed or downgraded, signaling just how fragile and corrupt the Honduran justice system is.

MACCIH’s progress in fulfilling its mission makes it vulnerable to attack and, possibly, non-renewal when its mandate expires in January 2020.  MACCIH spokesman Guimarães Marrey said in December that 11 new cases will soon be announced.  Many Hondurans hope that President Juan Orlando Hernández will be among the targets, on the assumption that he was aware of or involved in drug trafficking operations for which his brother, Tony, is under arrest in the United States.  Whether that happens or not, pressure on MACCIH is unlikely to abate.  Guimarães Marrey earlier this month re-released a draft “Effective Collaboration Law” – MACCIH’s main legislative priority – allowing plea-bargaining in return for accurate information leading to prosecutions.  Legislative opposition to the proposed legislation is strong, and its prospects – like MACCIH’s – remain uncertain.

February 22, 2019

*Aída Romero Jiménez is a team member of the CLALS project Monitoring MACCIH and Anti-Impunity Efforts in Honduras.