Ursula Indacochea* and Katharine Valencia**
Versión en español aquí.
President Joe Biden’s Administration has been very clear that one of its top priorities is addressing the massive migration of people to the United States, mostly from Honduras, Guatemala, and El Salvador. Biden has opted to distance himself from the human rights-violating policies and the hostile and criminalizing narrative of his predecessor in office, Donald Trump; and instead, has promised a humanitarian approach and effective measures to attack the real underlying problems: insecurity, hopelessness and lack of opportunities and welfare in the countries of origin, which force people to migrate.
This “root causes strategy» is being constructed with the involvement of several agencies, and rests on a sound premise: the need to understand the structural nature of the causes of migration, and that these causes cannot be resolved either in the short term or solely with the transfer of financial resources to governments. Where to begin, then, in addressing these issues?
Last January 20, the Biden Administration sent the proposed US Citizenship Act to Congress with the purpose of «providing a path to citizenship, addressing the root causes of migration and responsibly managing the southern border.» Particularly in sections 2103 and 2104, the bill identifies strengthening the rule of law, fighting corruption, and defending human rights as central to addressing the root causes of migration. With that framework in mind, and based on more than 20 years of work in the region – especially in the Northern Triangle of Central America – DPLF has formulated concrete recommendations, both regional and country-specific, to help achieve these objectives, whose cross-cutting concepts are developed below.
1. A victim-centered approach to corruption and human rights
The fight against corruption from a human rights perspective has been promoted in recent years by international human rights organizations. In its December 2019 thematic report, the Inter-American Commission on Human Rights (IACHR) has recognized that corruption in Latin America is structural in nature and has a serious impact on democratic governance, because it precipitates and aggravates, and generates the conditions that enable, violations of the fundamental rights and freedoms of citizens – and in certain cases, may in itself constitute a violation of such rights.
Therefore, in countries with high levels of corruption, combating this phenomenon is tantamount to increasing the protection of the human rights of their inhabitants, in turn enabling them to exercise effective citizenship.
How can we address the phenomenon of corruption from a human rights perspective? First, this approach implies that any anti-corruption strategy must place the victim at the center. This means understanding that corruption is not solely a phenomenon that has economic effects, or that impacts the State, but one that affects the rights and freedoms of specific individuals and groups – real people who lose opportunities and suffer diminished well-being because of corruption.
Therefore, corruption has victims, both direct and indirect, who must be identified in order to grant them all the rights that derive from this status. This includes, among other things, strengthening their capacity to access public information, denounce the corruption that affects them, participate in criminal proceedings against those responsible, and have access to comprehensive reparations.
Focusing attention on the victims of corruption is key, not only because such victims represent a large number of people – usually the most vulnerable and most likely to migrate – but also because doing so demonstrates to their fellow citizens how corruption directly impacts their lives, their rights and their well-being.
The Corruption and Human Rights approach encourages human rights organizations and defenders to identify how structures and networks of corruption operate, and how they impact rights. It also encourages anti-corruption organizations to use human rights mechanisms, tools, and strategies, including international systems, in their anti-corruption initiatives.
Thus, the Corruption and Human Rights approach is a «two-way street». It is not limited to raising awareness about how corruption impacts rights; it is also concerned with exploring how rights can be exercised to tackle the conditions in which corruption operates and thrives.
The Biden Administration can encourage this approach by promoting and supporting the work of coalitions of anti-corruption and human rights organizations; the innovative use of human rights advocacy tools in actions to counter corruption; and by encouraging the anti-corruption initiatives that receive US funds to identify specific victims and accompany them in reporting and litigating corruption cases. Support for Human Rights Ombudspersons’ initiatives addressing corruption is also fundamental, as is raising awareness and promoting the use of international anti-corruption treaties by courts and tribunals, especially Constitutional Courts. Finally, the Biden Administration should support international human rights bodies, especially the Inter-American Commission on Human Rights, in promoting and developing this approach throughout the region.
2. Civil society participation as a right.
The «root causes strategy» must give special prominence to the participation of civil society, promoting its understanding and demand as a right, and not only as a good practice.
The right of citizens to participate directly in public affairs is a political right expressly included in international human rights treaties (Art. 23.1(a) ACHR, Art.25.(a) ICCPR), and is recognized in the constitutions of most countries in the hemisphere; however, it has not received much attention or development. It is a right of strategic importance in contexts where corruption is structural and where corrupt networks have a strong influence on oversight institutions and the justice system and impede their proper functioning.
In the face of corruption and the inertia of these authorities, promoting citizen participation as a right can empower civil society to remove structural barriers (laws, institutional designs, or practices) that prevent or hinder the fight against corruption, and to monitor the functioning of these institutions and promote a culture of accountability.
Strategic litigation promoted by citizens or civil society organizations, and the accompaniment of civil society in high profile cases, also functions as a political shield that can protect the independence of judges and prosecutors of integrity who intervene in the cases of greatest social impact. Likewise, the alliance between civil society organizations and investigative journalism is a powerful one and has yielded good results.
The Biden Administration should support initiatives that foster greater participation of civil society, both in the strengthening of its technical and strategic capacities, as well as in the creation and institutional strengthening of new actors. It should also promote efforts between organizations or groups with complementary strengths (research, advocacy, communication), alliances with investigative journalism, initiatives with a regional perspective, and the development of international advocacy strategies.
In return for this support, the Biden Administration must consider that the progress made by civil society will provoke a strong response from corruption networks in the form of attacks, monitoring, criminalization, threats against or persecution of human rights defenders, journalists, activists and social leaders. Therefore, the support must incorporate a strong security and legal defense component against these types of attacks. In addition, from all political levels, the Administration must raise awareness of and strongly condemn these actions.
3. Strengthen the justice systems, especially the prosecutors’ offices.
To be sustainable over time and generate changes that are difficult to reverse, the fight against corruption requires dismantling the control that corrupt networks have managed to gain over the justice system, which guarantees them impunity. For corrupt networks, control over the high courts and the Attorney General’s Office is a necessary step, not only to be able to operate with impunity and without assuming responsibility for their actions, but also to consolidate legal positions that facilitate their activities, as well as to prosecute those who expose or hinder them. In other words, in order to strengthen and entrench itself, grand corruption needs a justice system that is functional for corrupt networks.
For this to happen, the corrupt networks seek to influence the selection processes for members of the high courts, and to place in those positions individuals who are aligned with their interests and who will not act independently. They also seek to control the governing bodies and those that administer the judicial career tracks, so that they can be used to exert influence over all the judges and prosecutors that make up the institution. At times, they promote legal reforms that concentrate power in the courts, reinforce the hierarchical nature of internal controls, and weaken accountability mechanisms.
In this scenario, the prosecutors’ offices deserve special attention. These institutions wield a great deal of power: they control the prosecution of criminal cases, whether cases are investigated or shelved, and whether certain people are investigated and others are not. In some countries, they can negotiate plea bargain agreements with individuals who provide information in exchange for sentence reductions. Likewise, their highly hierarchical structure facilitates that undue influence over the Attorney General extends downward to all prosecutors in the institution.
Under these circumstances, how can the Biden Administration strengthen justice systems? In the past, strengthening efforts have been focused on the transfer of economic and technical resources, through training, the acquisition of equipment, or the improvement and expansion of offices and courthouses. But in contexts of structural corruption, the priority must be on independence.
It is essential that the institutional reforms recommended by the international anti-corruption mechanisms that were installed in these countries (CICIG, MACCIH and CICIES) be implemented. Many of these recommendations include constitutional and legal reforms to the mechanisms for the selection of high authorities, and therefore it is essential to support citizen initiatives that are carrying the banner of these mechanisms.
Furthermore, local monitoring of selection processes and transparency have not been sufficient to counteract attempts by corrupt networks to influence and co-opt the courts and prosecutors’ offices. Therefore, the Biden Administration should promote and support innovative mechanisms for international observation of selection processes, both from civil society (for example, through international panels of independent experts) and from the international community (through observation missions similar to those organized for electoral processes). Likewise, the Biden Administration can support the monitoring work carried out by the Inter-American Commission on Human Rights and the United Nations Special Rapporteur on the Independence of Judges and Lawyers.
It is equally important to support the strengthening of democratic judges’ associations in the three countries of the Northern Triangle, as well as to make visible and protect the reputation of judges and prosecutors with integrity when they are subject to attacks and threats to their independence. The Administration should also foster regional networks of judges and strengthen ties with similar associations in the United States and other countries in the region.
The three cross-cutting themes described above form the basis of the specific recommendations that DPLF has developed in its document entitled Recommendations for the Biden Administration’s «Root Causes Strategy» for Central America: US priorities to promote the rule of law and combat corruption. Strengthening the rule of law, upholding human rights, and combating corruption are vital components of a solid strategy for the region, which the Biden Administration must translate into concrete actions. Listening to local and international civil society and taking advantage of their knowledge of the region will help to refine and strengthen it, elucidate lessons learned, and avoid mistakes made in the past.
* Director of the Judicial Independence Program, DPLF.
** Senior Legal Advisor, DPLF
Foto: AP Photo/Evan Vucci