International Intervention Instruments against Corruption in Central America (Governance, Development, and Social Inclusion in Latin America) 3030408779, 9783030408770

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GOVERNANCE, DEVELOPMENT, AND SOCIAL INCLUSION IN LATIN AMERICA

International Intervention Instruments against Corruption in Central America Laura Zamudio-González

Governance, Development, and Social Inclusion in Latin America Series Editors Rebecka Villanueva Ulfgard International Studies Instituto Mora Mexico City, Mexico César Villanueva Rivas Department of International Studies Universidad Iberoamericana Mexico City, Mexico

This series seeks to go beyond a traditional focus on the virtues of intra-­ regional and inter-regional trade agreements, liberal economic policies, and a narrow security agenda in Latin America. Instead, titles deal with a broad range of topics related to international cooperation, global and regional governance, sustainable development and environmental cooperation, internal displacement, and social inclusion in the context of the Post-2015 Development Agenda – as well as their repercussions for public policy across the region. Moreover, the series principally focuses on new international cooperation dynamics such as South-South and triangular cooperation, knowledge sharing as a current practice, and the role of the private sector in financing international cooperation and development in Latin America. The series also includes topics that fall outside the traditional scope of studying cooperation and development, in this case, (in) security and forced internal displacement, cultural cooperation, and Buen Vivir among indigenous peoples and farmers in Latin America. Finally, this series welcomes titles which explore the tensions and dialogue around how to manage the imbalance between state, markets, and society with a view to re-articulating cooperation and governance dynamics in the 21st century. More information about this series at http://www.palgrave.com/gp/series/15135

Laura Zamudio-González

International Intervention Instruments against Corruption in Central America

Laura Zamudio-González Ciudad de México, México

Governance, Development, and Social Inclusion in Latin America ISBN 978-3-030-40877-0    ISBN 978-3-030-40878-7 (eBook) https://doi.org/10.1007/978-3-030-40878-7 © The Editor(s) (if applicable) and The Author(s), under exclusive licence to Springer Nature Switzerland AG 2020 This work is subject to copyright. All rights are solely and exclusively licensed by the Publisher, whether the whole or part of the material is concerned, specifically the rights of translation, reprinting, reuse of illustrations, recitation, broadcasting, reproduction on microfilms or in any other physical way, and transmission or information storage and retrieval, electronic adaptation, computer software, or by similar or dissimilar methodology now known or hereafter developed. The use of general descriptive names, registered names, trademarks, service marks, etc. in this publication does not imply, even in the absence of a specific statement, that such names are exempt from the relevant protective laws and regulations and therefore free for general use. The publisher, the authors and the editors are safe to assume that the advice and information in this book are believed to be true and accurate at the date of publication. Neither the publisher nor the authors or the editors give a warranty, expressed or implied, with respect to the material contained herein or for any errors or omissions that may have been made. The publisher remains neutral with regard to jurisdictional claims in published maps and institutional affiliations. Cover illustration © Architectura / Alamy Stock Photo This Palgrave Pivot imprint is published by the registered company Springer Nature Switzerland AG. The registered company address is: Gewerbestrasse 11, 6330 Cham, Switzerland

Thanks to my parents and brother Raúl, Felisa and Emilio for all your support and love. To my children Ana Laura and David Ricardo, thank you for brightening and enriching my life every day. To my beloved husband David, thank you for your extraordinary and irreplaceable companionship.

Series Editors’ Preface

Corruption is defined by You Jong-sung and Sanjeev Khagram as the “the abuse of public power (or public office) for private gain”.1 By extension, the prevalence of corruption can be seen as an example of “poor governance.” No doubt, corruption has been a long-standing problem in many Latin American countries.2 Nonetheless, as the OECD report Integrity for Good Governance in Latin America and the Caribbean. From Commitments to Action (2018) notes,3 the region was a pioneer in recognizing, in 1996, the importance of the fight against corruption for economic and social development and adopted the first international convention on this subject: the Inter-American Convention against Corruption. In addition, all Latin American countries have ratified the United Nations Convention against Corruption (2005). Some of these efforts have led to better regulatory capacity in these countries to fight corruption. Fast forward, following the scandals surrounding the Brazilian Odebrecht company affecting almost a dozen countries in the region (2016–2019), greater informal and formal cooperation was promoted to professionalize the fight against corruption and prioritize this issue in the spirit of the commitment to “Open Government”. It culminated in the Eighth Summit of the Americas held on April 13 and 14, 2018 in Lima, Peru, whose main theme was, precisely, “Democratic Governance against Corruption”.4 The outcome was the Lima Commitment, emphasizing inter alia the reinforcement of democratic governance, transparency, access to information, protection of whistleblowers and human rights, including freedom of expression, prevention of corruption in public works and public procurement and contracting, the fight against bribery, vii

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international corruption, organized crime and money laundering. In addition, the compromise to strengthen Inter-American anti-corruption mechanisms.5 It is also relevant to situate the fight against corruption in Latin America in the wider context of the United Nations 2030 Agenda for Sustainable Development, which has given rise to country-specific commitments. Indeed, the Sustainable Development Goal (SDG) number 16 addresses “Peace, Justice and Strong Institutions.”6 SDG 16 includes two targets related to the focus of this study: “16.5: Substantially reduce corruption and bribery in all their forms”; and, “16.6: Develop effective, accountable and transparent institutions at all levels.” It is often heard that this is probably the most difficult goal to achieve given that its fundamental elements have a very different meaning across countries, and therefore could either constrain or facilitate its practical appliance. Shifting focus from the institutional level to the level of the individual, there is the dilemma of violence, which in Latin America has been perpetrated mainly from the military and organized crime. The new security agenda after the end of the Cold War established that the problem of violence has to be seen in the wider context of the security/development nexus. Security, as a concept, acquired a preventive dimension as it became tied to the creation of favorable conditions for (human) development. Hence, the notion of human security, established in the United Nations Human Development Report of 1994. In the same vein, a broader understanding of insecurity emerged; accepting that insecurity has a direct impact on the economy, but that it also implies costs in all social processes. Not just discouraging investments, insecurity erodes the perception of trust among people, adding additional costs in the negotiation processes on public policies. Hence the need to adopt a comprehensive approach, one in which security policies encompass measures to improve democratic quality, institutional transparency, and so forth. After all, there is no justice or development without peace, but neither is there security without equity, social cohesion and institutional transparency. In his speech on August 20, 2019, the Director for Latin America and the Caribbean at the International Institute for Democracy and Electoral Assistance (IDEA), Daniel Zovatto, addressed invited guests at the annual ceremony held in Guatemala City. He pointed out that there is an urgent need to “strengthen institutions to increase democratic resilience, that is, the capacity of democracy to face complex crises and challenges, survive them, innovate and recover.” This necessitates “modern and democratic

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parties, with transparent financing,” “legitimate parliaments […] complemented by citizen participation mechanisms,” “elections with integrity”, and “institutions and mechanisms of transparency and accountability.”7 In addition, he deplored the fact that the International Commission against Impunity in Guatemala (widely known as CICIG for its acronym in Spanish) was not granted a renewed mandate to fight corruption over the coming years. All this forms the background to this original and much welcome study by Laura Zamudio on the rise and fall of Hybrid Anticorruption Agencies (HACAs) in Guatemala and Honduras. Both countries could be characterized as “weak States” because the State has very modest resources, comparatively speaking, and the economic and political elite is recurrently accused of corruption practices. Fundamentally, these are States with high levels of insecurity and violence,8 resulting in migration with the United States as intended final destination. These HACAs; appearing as CICIG in Guatemala under the United Nations umbrella (2006–2019) and the Support Mission Against Corruption and Impunity in Honduras (MACCIH) under the auspices of the Organization of American States (2016 until January 19, 2020), necessitated the approbation of the governments in question. Their mission was to identify and bring to charges cases of corruption at the highest level of government. Zamudio skillfully maps out different elements of their hybrid nature. For example, these HACAs relied on both foreign experts in “processes of penal investigation and criminal prosecution” and training of domestic experts in these matters, coupled with financial independence in the form of a fiduciary arrangement. The reader will understand clearly in what ways MACCIH was a ‘leaner’ HACAs than CICIG in that it represented a “limited intervention model centered on the functions of consulting, supervision, and certification without formal powers of investigation and prosecution or a significant margin of operational autonomy.” Paradoxically, perhaps it is why it harvested more successes as it developed more ingenious ways of overcoming restrictions in its mandate, in barely three years of existence. Again, Zamudio points to the remarkable ability of HACAs to adapt their mandates and overcome organizational limitations when threatened of becoming abandoned by domestic agents. What is particularly revealing with Zamudio’s in-depth study, is that she convincingly demonstrates the inherent organizational strengths as well as vulnerabilities in these HACAs. She does so by applying concepts and

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arguments drawing on principal-agent theory as well as bureaucratic constructivism. On the one hand, CICIG and MACCIH—as HACAs—were quite well equipped to possess “functional autonomy” so as to remain aloof of any domestic political pressure. However, as Zamudio concludes, in reality they “always faced some kind of resistance and obstructionism.” One important reason, obvious in the CICIG case, is that its very mandate was seen as direct threat to the privileges of the economic and political elite, who was supposed to collaborate with the CICIG officials. In fact, some individuals of this elite had fallen subject to criminal investigation, which made it even harder to foresee a smooth collaboration process. Again, with solid anchoring in organization theory, Zamudio explains how the “CICIG reinterpreted its mandate in favor of a greater operational specialization and modification of its action strategies” as a response to this challenge. Zamudio has a very good point when saying that “the realist tradition does not recognize international organizations as authoritative entities capable of affecting the behavior of states” nor to have “autonomy to execute their own courses of action to modify their objectives and mandate”. Indeed, as she establishes firmly, it is beyond doubt that HACAs, as an observable empirical phenomenon, presents a significant analytical challenge to the dominant realist and neo-liberal institutionalist paradigms of the International Relations discipline. Crucially, HACAs challenge the fundamental notion of State sovereignty. This is where the choice of principal-­ agent theory becomes particularly interesting to defend. Zamudio makes a good case for its relevance when approaching HACAs as a readily observable phenomenon—being precisely “hybrid organizations with international mandates to intervene internally” in Guatemala and Honduras, thereby challenging the notion of State sovereignty. At the same time, the State structures, let alone the democratic structures, in Guatemala and Honduras are not particularly solid. For example, policies aiming at militarizing security, particularly in the Northern Triangle, have been a failure and it is foreseeable that this situation will continue until rule of law and legal institutions prevail, objectives that go beyond the mere security approach. Besides the tendency of “hyper-­ presidentialism” there is also a patchy process of decentralization which, on occasions, blurs (or even erodes) the power of the State in the border territories, where organized crime shows a growing presence, appropriating state powers (the phenomenon of capture). The peoples of Guatemala and Honduras need better governments—serving the people—to ensure

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the balance of powers to prevent abuse of power and ensure good practice of principles of transparency and accountability. After all, people need to have politicians who have a genuine commitment to fighting corruption. As Zamudio points out, although CIGIC could not continue, it actually helped the professionalization of the judicial system with specialized prosecution mechanisms for corruption-related charges, alleviating somewhat the pressure against prosecutors and judges. Eventually, MACCIH ran the same fate as CICIG: On January 17, 2020, the OAS Secretariat General issued a press release where it declared that the Honduran government was not willing to grant a new mandate to the MACCIH, which meant “a negative step in the fight against corruption and impunity in the country.”9 At the same time, the statement affirmed: “Although, as it cannot be otherwise, the national sovereignty of the Government of Honduras is recognized to make the decisions it deems pertinent in this regard, the OAS General Secretariat considers that it would be of great importance that the Mission continue to provide this service to the institutions of the country.” In this light, we hope that the author will continue scrutinizing anti-­ corruption initiatives in Latin America from her specific vantage point of theorizing their organizational features. Only time will tell whether there will emerge new kinds of HACAs in the Latin American region in the future. Nevertheless, one could argue that the existence of both the CICIG and the MACCIH are valuable examples or references for the implementation of the SDG 16, which in itself could be subject for another academic work/study. Beyond that, hopefully this study by Laura Zamudio could also serve to understand the role of HACAs in other parts of the world. Mexico City, Mexico  January 27, 2020

Rebecka Villanueva Ulfgard César Villanueva

Notes 1. You, J. and S. Khagram (2005), “A Comparative Study of Inequality and Corruption”, American Sociological Review, 70(1) (February), p. 137. 2. David Arellano-Gault, Corruption in Latin America, London: Routledge, 2019. Rotberg, Robert I. (Ed.), Corruption in Latin America. How Politicians and Corporations Steal from Citizens, Cham., Switzerland:

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Springer, 2019. Kurt Gerhard Weyland, “The Politics of Corruption in Latin America”, Journal of Democracy, 9(2), 1998, pp. 108–121. 3. OECD (2018), Integrity for Good Governance in Latin America and the Caribbean: From Commitments to Action, OECD Publishing, Paris, p. 11. Available at: https://doi.org/10.1787/9789264201866-en 4. VIII Cumbre de las Américas. Lima, Perú, 2018. Available at: http://www. viiicumbreperu.org/us/welcome/ 5. OECD (2018), Integrity for Good Governance in Latin America and the Caribbean: From Commitments to Action, OECD Publishing, Paris, p. 18. Available at: https://doi.org/10.1787/9789264201866-en 6. United Nations, Sustainable Development Goals. “Goal 16: Promote just, peaceful and inclusive societies”, n/d. Available at: https://www.un.org/ sustainabledevelopment/peace-justice/ 7. Daniel Zovatto, Conferencia Magistral, “La situación de la democracia en América Latina y sus principales desafíos”, IDEA, August 20, 2019. Available at: https://www.cicig.org/noticias-2019/conferencia-zovatto/ 8. See, for example, Armed Actors. Organized Violence and State Failure in Latin America, Kees Koonings and Dirk Kruijt (eds.), London, New York: Zed Books, 2005. 9. OAS. Press Release, E-003/20. Statement of the OAS General Secretariat on the Conclusion of the MACCIH, January 17, 2020, at: https://www. oas.org/en/media_center/press_release.asp?sCodigo=E-003/20

Acknowledgments

This research was conducted with the support of the Universidad Iberoamericana in Mexico City. I am deeply grateful to Dr. Thomas Legler, Chair of Investigation Department and Dr. Alejandro Guevara, Academic Vice-chancellor, for their support. I am also grateful to Dr. Rebecka Villanueva Ulfgard and Dr. Cesar Villanueva Rivas (series editors) for their trust and invitation to participate in their project. Mexico City, México January 16, 2020

Laura Zamudio-González

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Contents

1 Introduction: Corruption and State Capture: Emerging Topics in the International Security Agenda  1 References  14 2 Hybrid Anticorruption Agencies 19 Hybrid Anticorruption Agencies (HACAs)  19 Political Corruption and State Capture: The Organizational Problem  24 Conceptualization of Political Capture  25 Conceptualization of State Capture  30 The Hybrid Logic as an Organizational Solution  32 The Hybrid Logic of HACAs in the Context of National Anticorruption Agencies  36 References  40 3 Theoretical Framework: HACAs as Autonomous Actors 45 The Agenda of International Organizations in the International Relations Discipline  47 Principal-Agent Theory  53 Constructivist Bureaucratic Theory  57 References  63

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4 The International Commission Against Impunity in Guatemala (CICIG) 67 The Birth of CICIG  69 CICIG: Hybrid Design with Functional and Operational Autonomy  73 Threats and Challenges in the Implementation of the Mandate  77 Threat of Abandonment  78 Resistance and Obstructionism  79 CICIG as a Hybrid Anticorruption Agency  82 Lessons Gained from CICIG’s Organizational Challenges  87 References  90 5 The Support Mission Against Corruption and Impunity in Honduras (MACCIH) 93 The Birth of MACCIH as HACA  96 Hybrid Nature, Limited Mandate  99 Limited Operational Autonomy 103 Threats and Challenges in the Implementation of the Mandate 106 Intra-organizational Conflict 108 Resistance and Obstructionism 109 Lessons Gained from MACCIH’s Organizational Challenges 113 References 115 6 CICIG and MACCIH: Two Models of Hybrid Anticorruption Agencies119 CICIG and MACCIH: Unique Experiences, Different Models 122 HACAs: A New Generation of International Organizations Against Corruption 131 References 135 Index 137

Abbreviations

AAC ACA CCEC CIACS CICIACS CICIG DNA EULEX FAO HACA IACAC IAEA IHSS IR KNAB MACCIH MEC MESICIC MINUGUA MINUSTAH MP

Armenian Anticorruption Council Anti-Corruption Agency Moldovan Centre for Combating Economic Crime and Corruption Illegal Corps and Clandestine Security Apparatus (Spanish) International Commission for the Investigation of Illegal Bodies and Clandestine Security Groups (Spanish) International Commission against Impunity in Guatemala (Spanish) National Anti-Corruption Directorate in Romania EU Rule of Law Mission in Kosovo Food and Agriculture Organization of the United Nations Hybrid Anti-Corruption Agency Inter-American Convention against Corruption International Atomic Energy Agency Honduran Institute of Social Security International Relations Corruption Prevention and Combating Bureau of Latvia Mission to Support the Fight against Corruption and Impunity in Honduras (Spanish) Independent Joint Anti-Corruption Monitoring and Evaluation Committee in Afghanistan The OAS Follow-Up Mechanism for the Implementation of the Inter-American Convention against Corruption United Nations Verification Mission in Guatemala United Nations Stabilization Mission in Haiti Ministerio Público (Spanish) xvii

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ABBREVIATIONS

NATO NIE OAS OCDE OI OSJI PKO PNC RPEI SG SIHCIC SRSG STT TI UEFAC UFECIC UN UNAMID UNCAC UNDP UNEP UNESCO UNHCR UNICEF UNMIK UNODC UNTOC USKOK WB WTO

North Atlantic Treaty Organization New Institutional Economics Organization of American States Organization for Security and Development in Europe International Organization Open Society Justice Initiative Peacekeeping Operation National Civil Police (Guatemala) Illicit Economic and Political Networks (Spanish) Secretary General Honduran Integral System Against Impunity and Corruption (Spanish) Spokesperson and Special Representative of the Secretary General Special Investigation Service of the Republic of Lithuania Transparency International Special Prosecutor’s Office for CICIG (Spanish) Special Attorney’s Unit against Impunity and Corruption in Honduras (Spanish) United Nations Organization United Nations-African Union Hybrid Operation in Darfur United Nations Convention against Corruption United Nations Development Programme United Nations Environment Programme United Nations Educational, Scientific and Cultural Organization United Nations High Commissioner for Refugees United Nations Children’s Fund United Nations Interim Administration Mission in Kosovo United Nations Office on Drugs and Crime United Nations Convention against Transnational Organized Crime Croatian State Prosecutor’s Office for the Suppression of Corruption and Organized Crime World Bank World Trade Organization

List of Tables

Table 2.1

Acts of corruption contemplated by the United Nations Convention against Corruption26 Table 3.1 Elements of risk and limitations in the execution of the organizational mandate indicated by theories 62 Table 4.1 Hybridization: Actors with which the CICIG shares governance duties 74 Table 4.2 Successful Sentences achieved in collaboration with CICIG (2007–2018)85 Table 4.3 Criminal categories and cases investigated by CICIG before 2013 85 Table 4.4 Criminal categories and cases investigated by CICIG after 2013 86 Table 5.1 Hybridization: duties shared by MACCIH with other actors in matters of government 99 Table 6.1 Models of hybrid anticorruption agencies in Central America 124 Table 6.2 Differences derived from HACAs relationships with their supporting organizations 125 Table 6.3 Operational differences between the prosecution special units in support of HACAs 126

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CHAPTER 1

Introduction: Corruption and State Capture: Emerging Topics in the International Security Agenda

Abstract  The political corruption phenomenon has slowly transformed itself into a serious threat to peace and international security, since among other negative consequences, it facilitates the infiltration or capture of government institutions and favors violence and impunity. The emergence of Hybrid Anticorruption Agencies (HACAs)—CICIG in Guatemala and MACCIH in Honduras—created by the United Nations and the Organization of American States respectively, gives prominence to innovative instruments for the identification and disarticulation of complex structures of corruption at the highest levels of government. This is due to the insertion of fiscal and international experts in processes of penal investigation and criminal prosecution at the domestic level. The chapter maintains that these organizations are significantly innovative, though also vulnerable and inherently risky in the fight against corruption. Keywords  International security • Political corruption • Criminality • Hybrid Anticorruption Agency • Central America Political and administrative corruption within state cores constitutes a serious threat to peace, security, and governance at the global level (Andreas and Nadelmann 2006; Donais 2005; Lindberg and Orjuela 2014; Rotberg 2009). Although it is an old and persistent phenomenon (widely studied © The Author(s) 2020 L. Zamudio-González, International Intervention Instruments against Corruption in Central America, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-40878-7_1

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in terms of its developmental and economic consequences), its effects on other types of instability and violence at the international level have not been addressed clearly (CEIP 2014). The UN Secretary General, António Guterres, addressed the far reaching consequences of this problem in September 2018, when, before the UN Security Council, he stated that corruption does not only generate a net loss of 2.6 trillion dollars (or 5% of the global GDP, according to an estimate from the World Economic Forum), but is also strongly correlated with terrorism, extremism, criminality, and violence (Guterres 2018). Corruption is considered a serious structural problem of national competence, centered in the action of isolated government administrators who, in the absence of any mechanisms of transparency, supervision, accountability or discernible sanctions, abused their roles in the public sector to enrich themselves or their families. However, corruption is now also seen within the international framework where new issues appear as critical, not only impacting nations but a whole set of other dynamics triggered by globalization and interdependence. This same trend has also sparked its own counterweight in the form of international anticorruption campaigns launched by the World Bank (among many other international bodies) over the last few decades.1 Today, corruption is considered a growing and concerning global threat precisely because it involves both economic and political exchanges between national and transnational groups organized at the highest level (with the potential to infiltrate and capture entire state institutions) (Cockayne 2016; Thachuk 2005; Williams 1994).2 Although as a phenomenon corruption takes many forms, making it difficult to draw conclusions based on analysis of few cases, many analysts have found clear correlations between corruption at the highest levels and the predominance of overall violence and instability at the international level (IFE&P 2018). Recent investigations demonstrate that corruption enables the emergence of extremist and terrorist groups with transnational links acquiring weapons through bribes and other illicit activities (Cockayne 2016; Cockayne and Lupel 2011; Makarenko 2004; Shelley 2005). Corruption also enables the creation of black markets and similar organized power structures that traffic weapons, persons, diamonds, strategic resources and wild animals (among many other examples) (Dziedzic 2016a, b). It has also been proven that endemic corruption has led to the infiltration and collapse of entire state institutions, facilitating the conditions which many

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academics refer to as ‘criminal’, ‘failed’, or ‘mafia’ states (CEIP 2014; Green and Ward 2004; Legvold 2009; Naím 2012). Corruption can be understood as a phenomenon that is so disruptive that even in postwar contexts, under optimistic scenarios, and even directly after the signings of peace treaties, it could actually increase its presence. Corruption usually becomes the way through which structures of criminality fostered during war times acquire more power in order to even obstruct the process of peacekeeping and stabilization (Berdal and Zaum 2013; Boucher et al. 2007; Del Castillo 2008; Galtung and Tisné 2009; O’Donnell 2006; Zaum and Cheng 2012). In these scenarios, peacekeepers are trapped inside unavoidable circumstances of violent conflict and are forced to confront criminal groups which, by their very nature, are incredibly difficult if not impossible to negotiate with. These groups often take advantage of their contracts with government administrators, policemen, and former militaries to gain protection and continue their illicit activities. They are also capable of hoarding resources donated by the international community, enriching themselves through them, and unnecessarily prolong armed conflicts (Le Billon 2003, 2005, 2008). Corruption thus constitutes one of the most pressing issues in the global security agenda. The capture of state institutions and their emerging convergence with illicit activities damage democratic legitimacy, trigger serious human rights violations, and even favor the commission of inhumane crimes (as was demonstrated in cases documented by the Open Society Foundation of crimes commissioned or even perpetrated by state agents) (OSJI 2018). An even higher level of complexity can be added to this multifaceted global problem: the fact that instruments that until today had been generated to prevent, diminish, and control corruption have not lived up to their lofty goals or have been little effective (Arellano-Gault 2020; Heeks and Mathisen 2012). The efforts of international organizations and development agencies have been directed towards providing technical advice, designing legal instruments of intergovernmental cooperation, and distributing normative and operational frameworks that contribute to the design and strengthening of national anticorruption systems (among others) (Meagher 2004; OECD 2008). Several bodies stand out, including the United Nations Convention Against Corruption (UNCAC), the United Nations Convention against Transnational Organized Crime (UNTOC), the Interamerican Convention Against Corruption (IACAC),

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and OECD Convention on Combating Bribery of Foreign Public Officials in International Business Transactions (OECD Anti-bribery). Despite these efforts, the international community had not intervened directly with international organizations in a country, with power and capacity to investigate or even prosecute corrupt structures. The creation of international organizations with these capacities, organizations that can be called hybrid, appeared just recently. The creation of the International Commission against Impunity in Guatemala (Spanish acronym, CICIG, launched in 2007) and the Support Mission Against Corruption and Impunity in Honduras (Spanish acronym, MACCIH, launched in 2016), constitute the first and only cases of international intervention directed towards supporting governments in the identification and dismantling of complex networks of corruption embedded deeply in states and their institutions.3 These organizations possess a hybrid design and were created by other multilateral organizations, including the United Nations (UN) and the Organization of American States (OAS), to promote (with separate but similar dynamics) a new strategic approach to fight corruption. They seek to go beyond programs of technical assistance and efforts of intergovernmental coordination traditionally articulated by international organizations and other support mechanisms (such as conventions, treaties, agendas, regimes, or international supervising bodies). By the same token, they do not ever become complex interventions, with the mandate of temporarily substituting the state with full executive, legislative, and judicial powers. Examples are the transitional administrations of Bosnia-Herzegovina, Kosovo or East Timor (Chesterman 2005; Strohmeyer 2001). These international organizations, CICIG and MACCIH, are mandated to act in the country in question and ordered to create capacities to identify networks of corruption and opening up cases for further investigation to reduce the impact of corruption in an effective manner. This is what makes them unique in the international set of instruments to intervene in the global arena. These hybrid organizations, which we will refer to in this study as Hybrid Anticorruption Agencies (HACAs), constitute a significant organizational innovation with respect to existing national anticorruption agencies (known as ACAs). Just as existing ACAs, HACAs can perform diverse functions: from prevention and education to supervision and sanctioning, including training processes, consulting processes, thematic studies, and legislative recommendations. The backbone of these organizations, however, lies in their capacity to investigate and prosecute cases of

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corruption. In that sense, the hybrid nature of HACAs is a major particular characteristic, for their inclusion of both international experts and prosecutors performing these functions allow them to act with independence and autonomy, reducing the possibility of interference from powerful corrupt actors who wish to preserve their illicit privileges. As such, HACAs are designed to “actively support” (not substitute) state institutions that are in charge of combating corruption, such as the Ministerio Público (the organization with the greatest powers of investigation and penal enforcement in several Latin American countries). The intervention of external internationally supported organizations seeks to generate necessary conditions and counterweights that will allow them to function properly, without the susceptibility of becoming hijacked by political or economic interests embedded inside government bodies. This study analyzes the creation and implementation of these new organizational instruments, studying their nature, characteristics, contradictions, and challenges, as international organizations battling corruption based on a hybrid strategy: international in essence, but national in their action capacity. Precisely, these HACAs allow for approaching international organizations as organizations, from a theoretical perspective that places particular attention on the way in which these organizations act strategically; making decisions, interpreting and adjusting their mandate, ensuring their own survival, and maintaining their success in the context of great resistance and opposition. The case studies of each of these HACAs will allow us to understand a variety of important questions: How were these hybrid organizations capable of transforming the political dynamics overrun by corruption in their respective countries? What were the challenges and organizational dilemmas they were forced to confront in terms of strategy, organizational capacity, and long-term political sustainability? What were the balances and tradeoffs that allowed them to transform into sustainable alternatives in the fight against corruption, impunity and organized crime? This study’s central argument is that, due to their hybrid nature, HACAs are as innovative as they are vulnerable in their fight against political corruption. The very hybrid features (combining an international mandate and resources with operational and technical capacity to legally act within states) that make them so viable and powerful, also expose them to certain vulnerabilities. Their innovation comes from their design: in contrast with national ACAs, these organizations have actors who are foreign to internal political dynamics often already hijacked by powerful networks of political corruption. It is precisely because they have financial,

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political, and administrative autonomy that they are able to attack and dismantle those networks without the fear of budgetary control from state institutions. Their vulnerability, on the other hand, resides in the complex political reality they must operate under, which translates into maintaining good relationships and continued acceptance from all relevant stakeholders. This includes pleasing their funders and the international organizations that created them, as well as domestic actors (including state organizations) who, in the end of the day, might be the ones investigated for corruption. As part of the same argument, this study will sustain that there are several challenges and dilemmas that come with executing such an innovative and risky model. For example, the complex political negotiations that need to be implemented in order to allow an international organization to gain acceptance by different national institutions at the executive, legislative, and prosecutorial agencies within a sovereign state. An operation of evidently high level of complexity. These negotiations usually end creating a political and legal instrument that defines the mandate and the design of the organization, full of strict specificities and detailed particularities that generally make the action of the HACAs more difficult. HACAs, facing mandates and designs that are not only operative but created politically to place important restrictions to their organization, need diverse managerial and political strategies to create capacities of action and operation. In other words, the autonomy demanded by design must actually be constructed in practice in order to make the organization a viable one, since it is clear that internal resistances to the organizational action would begin almost immediately, because some powerful political actors might become objects of investigation and prosecution. This genuine autonomy required to attain results cannot be generated solely by decree. Therefore, HACAs must constantly shift and redesign their mandate in order to survive, including the need to adjust strategies, renegotiate their operations in order to gain legitimacy, and redesign their instruments of action. Consequently, in order to function properly, HACAs require a high level of simultaneous interinstitutional cooperation and autonomy, which in turn makes them highly vulnerable to resistance from any bodies they attack, whose support they paradoxically need. Their survival depends, in great measure, on their capacity to maintain an effective strategy against corruption that allows heterogeneous actors, both national (governments, legislatures, judicial bodies, private sector leadership and civil society) and international (funders, international organizations), to continue supporting their very existence. This requires a delicate balance in matters of authority and governance.

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One of the main challenges to address in the study of hybrid organizations is the fact that the International Relations literature specialized in topics of peace, conflict and international governance has only recently advanced towards the construction of theories to clarify the autonomy and agency of international organizations (and consequently, their processes of innovation and organizational change). The most influential theories in the discipline (realist approaches and neoliberal institutionalism), often argue that the existence, permanence, and propensity for organizational change are direct results of interests and preferences of its member states. These preferences, are, in the end, the ones that created and sustained those same international intergovernmental organizations (and are the only relevant actors of the international system) (Keohane and Nye 1977; Mearsheimer 1994–1995; Waltz 1979). In other words, realism assumes that International Organizations (IOs) are mere instruments of powerful states. HACAs are organizations that need to adapt and be accepted not only by the states that create or support them but also by the countries’ authorities where they are will act and perform. In this sense, realism, as a theory, would have a difficult time to present any solid empirical evidence for the ways in which these IOs need to build some basic level of authority and autonomy, since they are forced to find practical ways in which they would be allowed to participate in processes of internal anticorruption investigation and prosecution. It is important to recognize that, beyond the International Relations discipline (IR), there is a vast and consolidated literature explaining the nature of international organizations (their agency, autonomy, and endogenous power of action) (Reinalda and Verbeek 2004, 2005; Trondal 2014; Trondal et al. 2010). Regardless, this literature often emerges from different interests and assumptions that do not necessarily consider the specificities of the dominant debate in the discipline Seen in this light, this study is founded on a particular analytical perspective, which, if not necessarily close to mainstream organization analysis, comes closer to the IR tradition. Examples are the principal-agent theory and bureaucratic constructivism (both of them emerging from the IR discipline). These perspectives allow for an analysis of HACAs in action, with a particular emphasis on their decisions, potential for learning, and propensity for adaptation in connection with successes and failures emerging from their own track record of execution. In other words, this implies a fair comprehension of the challenges they face as organizations in both national and international contexts. Both theories (principal-agent theory and bureaucratic constructivism) share the ontological principle that international

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organizations have full agency and autonomy, a critical assumption sustaining any exhaustive study of their respective processes of organizational innovation and change (not to mention reaching a full understanding of the ways in which their decisions are implemented) (Peters 2001). Under this same analytical perspective, one of the basic assumptions of the principal-agent theory is that international organizations (agents) possess their own interests, and that they do not always align with the interests of the state (principals). As such, any agreements established between both parties may not be fully recognized by either party, whether due to the agent’s inability to fulfill the interests of the principal, or the principal’s fundamental rejection of any supervision by the agent (Hawkins et  al. 2006). In this theoretical approach and in their fundamental role as rational and selfish actors, agents take advantage of all information asymmetries, heterogeneity of preferences among principals, and ambiguities in the elaboration of agreements (not to mention the lack of supervision and control). This allows them to act unilaterally to stake out and amplify their own terrain for discretional freedom, power, resources, and prestige. The states (principal) are also prone to seeking to reduce the cost of completing any task involving the intervention of an agent, but if the supervision or control of an agent is deemed excessive, the incentives for maintaining the longevity of an agreement are fully lost. The risk of abandonment for these agreements is an important argument often used to explain inherent complications in an integrated and sustained cooperation at the interinstitutional level (as is the case with hybrid organizations). As will be analyzed in the coming chapters, a complex chain of agents and principals is often observed when these analytical perspectives are applied to HACAs (where the governments of Guatemala and Honduras are not the only actors with principal qualities). In such cases, those states are not the ones renewing or extending the agreements with their own agents (there are many other third parties financing these experiments, including other governments). Along with the United Nations (UN) and the Organization of American States (OAS), these governments share the characteristics of a principal. Even then, that nuanced application of the agent-principal theory would not allow for an in-depth understanding of the subtleties that emerge from the fact that international organizations are also acting as the principals of other international organizations (and in these cases, creators of other international organizations, which speaks to a higher level of autonomy). HACAs thus face a scenario with a significantly higher risk of abandonment by one or several of their principals.

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In contrast constructivism clearly magnifies the importance of ideas and norms in the definition of interests, identities, and behaviors (Finnemore and Sikkink 1998; Wendt 1999). Followers of this particular theoretical approach acknowledge that both individuals and states are sensible to the processes of socialization, they adopt and respect norms, and respond to the logic of “appropriate” or “expected” behavior. This approach also utilizes the concepts of “norm entrepreneurs” in the sense that their norms emerge from and are solidified by individuals or groups (and become the foundation for new normative frameworks that influence the definition of interests and identities of other actors) (Keck and Sikkink 1998). This study will make use of the bureaucratic definition of constructivism, advocated by Barnett and Finnemore (1999, 2004). This approach holds that international organizations contribute to the definition of concepts that frame social reality through the generation of new definitions, actors, and tasks. They are the ones who clearly identify the ways in which refugees and their rights are defined, establish what an appropriate use of nuclear energy is, or present the expectations of states in terms of humanitarian protection. In other words, this theoretical perspective demands a clear understanding of the magnitude of power and influence international organizations wield, and their ways of wielding that power through the design and execution of rules that solidify definitions and mandate specific behaviors (Barnett and Finnemore 1999). By the same token, Barnett and Finnemore point out that, paradoxically, the alignment with rules, processes, and routines can easily trigger deviations in the fulfillment of defined objectives (or situations in which the organizations are forced to proceed against their own rules and bureaucratic cultures in order to fulfill their own mandates). This is what the same authors identify as “bureaucratic dysfunction”, one of the most important risks of organizational behavior. Beyond the risk of contract abandonment (exposed by the principal-agent theory), hybrid organizations also face the possibility of not fulfilling their own mandates due to bureaucratic rigidity (Barnett and Finnemore 1999). Interestingly, both principal-agent theory and bureaucratic constructivism offer critical elements regarding the ways in which hybrid organizations intend to operate and implement their mandates. These theories shed light on design conditions and elements that restrict the actions of HACAs when it comes to real-world execution. This, however, does not impede them from developing proper mechanisms of response, adaptation, and learning.

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Neither theory ever reaches the level of advising international organizations to be fully independent, shying any influence from states (especially the most powerful ones), or adopt additional financial, environmental, or bureaucratic limitations. They also do not reconsider their focus on the states as critical actors in the international system and the behavior of international organizations. That being said, some of their proponents allow for a visualization and identification of the conditions in which organizations interpret and decide on their strategies and tactics (as well as follow their own political or organizational interests). The same applies to their construction of discretional action frameworks and their adjustments of their own mandates. The intention of this study is not to prove or test either theory or their respective assumptions, but to use them to examine the challenges and opportunities that HACAs face once launched. Beyond that, the purpose is to explore in-depth their organizational strengths and weaknesses in their pursuit of autonomy (a key aspect of their mandate) within a turbulent political environment.4 The case studies present an analysis of critical elements in the design and practice of HACAs. These include the ways in which HACAs executed their decision-making processes and adjusted their mandate to move from a fight against impunity to a fight against corruption, as was the case with CICIG, and the weak insertion into the national anticorruption system in Honduras for the case of MACCIH. They also include processes that were not foreseen in the original design of those organizations but were built in response to the problematic challenges of action in a predetermined context and timeline. The first intention of this contribution to the academic literature is to add a perspective on the potentials and risks of hybrid organizations as new authoritative forms of governance and autonomous actors with a strategic capacity for action. Hybrid organizations are part of a new series of international governance frameworks that, next to compacts, complex regimes, public-private associations, multi-stakeholder cooperatives and others, involve private actors, civil society, and government bodies in the provision of public service. In some cases, they act as disguised mechanisms of authority, which differentiates them from international cooperation mechanisms and the now dominant state-centric paradigm (Lake 2010). The cases addressed in this study offer empiric evidence that may contribute to the effort of conceptualizing what Krasner and Risse call external intervention in the contexts of limited statehood (Krasner and Risse 2014).

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Specifically, this study allows for an analysis of challenges and opportunities that come with the intervention of external actors in substantive government functions in contexts of serious political turbulence. These are contexts where, paradoxically, spaces of autonomy are required for the execution of day-to-day tasks. In other words, it generates lessons regarding the strategic action of HACAs to create complex, loaded, and effective mandates of operational contradictions. Moreover, it presents interesting perspectives on the organizational conditions and challenges that led to adjustment of their mandates and implementation. As a secondary objective, this study seeks to add to the theoretical/ practical debate on international anticorruption instruments. The HACAs created in Central America are pioneers in the fight against corruption with direct support from the international community. They were justified in terms of formalizing processes of peace and security, and they go beyond traditional operations of technical guidance. CICIG and MACCIH offer empirical evidence of the ways in which HACAs can become an alternative to national anticorruption agencies, especially when it comes to cases of political corruption or state capture (situations in which national agencies become contained or even paralyzed). HACAs consider themselves beyond internal political dynamics and as a result, they expect to have a larger margin of autonomous action. This study helps identifying the organizational strengths and weaknesses of these instances, which may enrich the designs and new experiences of international action in the fight against corruption. The findings of the investigation are limited to two hybrid anticorruption agencies managed by two multilateral organizations. This work would have acquired other features and complexities had it incorporated an examination of the inter-organizational relationships between the hybrid agencies CICIG and MACCIH, and the multilateral organizations that supported them (UN and OAS). Such a study would allow us to comprehend this separate stage where the strategic action of HACAs took place. However, tensions, games, instruments of control, and discretional spaces between these two strategic actors (UN and OAS) were not studied in great detail due to the fact that their relationship with host states created a cloak in which national and international actors articulated their visions, and activities were executed through mixed teams or hybrid bodies of action. By the same token, the incorporation of additional theoretical approaches from other disciplines (such as organizational theory and

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public administration), whose instruments are more tuned in with the analysis of organizations as organizations, could further conceptualize these types of hybrid instances and their relationship with their host states. This work is divided into six chapters organized as follows: This introduction establishes the issues and key points for analysis, as well as the scope of the work with its corresponding reaches and limitations. A critical argument of the study, established in this introduction, is that HACAs constitute significantly innovative organizations in the fight against corruption, while also being vulnerable to the contradictions derived from their hybrid nature. The second chapter revises the concept of political corruption (which is understood as complete state capture), and the concept of hybridization as a strategy of organizational action to combat it. This relationship (corruption and capture) is key to grasp the nature of hybrid commissions in Central America, for as the World Bank established, political capture constitutes a subcategory of political corruption at the highest levels of government? (WB 1997). As such, capture can be understood as a much more complex political project than simple bureaucratic corruption, where political and private actors link together and establish clandestine rules, infiltrate state political institutions, acquire power, act with impunity, and even subvert the constitutional order and social contracts (obliterating all of their public interest mandates) (Godinho and Hermanus 2018). The aim of this chapter is to conceptualize the hybrid nature of HACAs and explain the reasons why its hybrid logic strengthens its functioning as anticorruption instruments (even as alternatives to national anticorruption agencies). The third chapter is fully theoretical and analyzes two approaches that have begun influencing the understanding of international organizations in the IR (both from the perspective of the principal-agent and bureaucratic constructivism theories, especially for those who study organizations as bureaucracies). These theories defend and support the argument that international organizations are capable of making decisions, interpreting their own issues and context, and act strategically. At the same time, these theories are able to properly identify areas of concern and challenges for practical execution derived from the complex relationships and struggles that a HACA need to develop in order to gain autonomy to carrying out its mandate. The objective of this chapter is to identify some elements of organizational behavior stemming from these two theories. From the principal-agent theory we will find the importance of discretional action

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HACAs are able to win within sovereign states, earning their decision-­ making capabilities (and autonomy). From bureaucratic constructivism, we will learn that HACAs can even reinvent themselves as a strategy to cope with risks and restrictions imposed by the specific context these agencies face once inserted into specific state dynamics. Chapters 4 and 5 present the case studies: CICIG in Guatemala and MACCIH in Honduras. The objective of these chapters is to identify their respective spaces of autonomy and discretionary freedom, as well as difficulties imposed by their hybrid design. These chapters analyze several takes or stances in which these organizations interpret and implement their mandates while simultaneously finding ways to dodge resistance on the part of powerful individuals or groups. The last chapter closes with general reflections on strengths and weaknesses of HACAs derived from the comparison of their investigation and criminal prosecution models (as well as their viability as alternative and effective instruments in the fight against corruption). This chapter also proposes several areas for further research on international organizations from an IR perspective, specifically relating to their ability to generate structures of authority and autonomy within states (as well as their viability as anti-corruption instruments from the hybrid logic).

Notes 1. The World Bank has been the leading agency in the fight against corruption since 1997. The document titled “Helping Countries to Combat Corruption: The Role of the World Bank” constitutes the first strategic approach to confront corruption as a development issue and critical element for consideration in international aid initiatives (World Bank 1997). For an analysis of the different stages of strategic design for the World Bank in the fight against corruption, see Johnsøn (2016). 2. Corruption and its effects on matters of economic development, foreign investment, productive costs, disparity, and injustice is very high. For reference, see Rose-Ackerman (1975, 1978). 3. Another similar organization was created by the European Union in Kosovo (European Union Rule of Law Mission Kosovo EULEX 2008). Because Kosovo is not considered a sovereign state, however, it could be argued that this organization is not at the same level as the CICIG and the MACCIH, which were born out of complex negotiations with international recognized sovereign states. For a comparison between EULEX y CICIG, see (Kuris 2019).

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4. In other cases, these theories offer elements for a further analysis of the central leadership role in the organization, understood not as personal individual qualities, but as the capacity for action in the post itself. These include the use of the post for reconceptualizing problems and redefining instruments of action and the repositioning of the organization into a more favorable footing allowing it better access to resources (Oestreich 2012).

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Galtung, Fredrik, and Martin Tisné. 2009. A New Approach to Postwar Reconstruction. Journal of Democracy 20 (4): 93–107. Godinho, Catrina, and Lauren Hermanus. 2018. (Re) Conceptualising State-­ Capture. With a Case Study of South African Power Company Escom. Conference Paper prepared for the Public Affairs Research Institute’s State Capture and Its Aftermath: Building Responsiveness Through State Reform, October 22–24, Johannesburg. Green, Penny, and Tony Ward. 2004. State Crime. Governments, Violence and Corruption. London: Pluto Press. Guterres, António. 2018. La corrupción le cuesta al mundo 2.6 billones de dólares al año. United Nations News, September 10. https://news.un.org/es/ story/2018/09/1441292. Hawkins, Darren, David Lake, Daniel Nielson, and Michael Tierney, eds. 2006. Delegation and Agency in International Organizations. New York: Cambridge University Press. Heeks, Richard, and Harald Mathisen. 2012. Understanding Success and Failure of Anti-Corruption Initiatives. Crime, Law and Social Change 58 (5): 533–549. IFE&P (Institute for Economics & Peace). 2018. Positive Peace Report 2018. Analysing the Factors than Sustain Peace. Sydney: IFE&P. Johnsøn, Jesper. 2016. Anti-Corruption Strategies in Fragile States. Theory and Practice in Aid Agencies. Cheltenham, UK: Edward Elgar. Keck, Margaret, and Kathryn Sikkink. 1998. Activist Beyond Borders: Advocacy Networks in International Politics. New York: Cornell University Press. Keohane, Robert, and Joseph Nye. 1977. Power and Interdependence: World Politics in Transition. Boston, MA: Little Brown. Krasner, Stephen, and Thomas Risse. 2014. External Actors, State-Building, and Service Provision in Areas of Limited Statehood: Introduction. Governance: An International Journal of Policy, Administration and Institutions 27 (4): 545–567. Kuris, Gabriel. 2019. Comparing Peer-Based Anti-Corruption Missions in Kosovo and Guatemala. Bergen, Norway: U4 Anti-Corruption Resource Center, Chr. Michelsen Institute. Lake, David. 2010. Rightful Rules: Authority, Order, and the Foundations of Global Governance. International Studies Quarterly 54: 587–616. Le Billon, Philippe. 2003. Buying Peace or Fuelling War: The Role of Corruption in Armed Conflicts. Journal of International Development 15 (4): 413–426. ———. 2005. Overcoming Corruption in the Wake of Conflict. In Global Corruption Report 2005, 73–82. Berlin: Transparency International. ———. 2008. Corrupting Peace? Peacebuilding and Post Conflict Corruption. International Peacekeeping 15 (3): 344–361.

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Legvold, Robert. 2009. Corruption, the Criminalized State, and Post-Soviet Transitions. In Corruption, Global Security, and World Order, ed. Robert Rorberg, 194–239. India: Pentagon Security International. Lindberg, Jonas, and Camila Orjuela. 2014. Corruption in the Aftermath of War: An Introduction. Third World Quarterly 35 (5): 723–736. Makarenko, Tamara. 2004. The Crime-Terror Continuum: Tracing the Interplay between Transnational Organised Crime and Terrorism. Global Crime 6 (1): 129–145. Meagher, Patrick. 2004. Anti-Corruption Agencies: A Review of Experience. Paper prepared for World Bank, IRIS Center for Institutional Reform and the Informal Sector at the University of Maryland. http://www1.worldbank.org/ publicsector/anticorrupt/feb06course/summarywbpaperacagencies.pdf. Mearsheimer, John. 1994–1995. The False Promise of International Institutions. International Security 19 (3): 5–49. Naím, Moisés. 2012. Mafia States. Organized Crime Takes Office. Foreign Affairs 91 (3): 100–111. O’Donnell, Madelene. 2006. Post-Conflict Corruption: A Rule of Law Agenda? In Civil War and the Rule of Law, ed. Agnés Hurwitz and Reyko Huang, 225–261. Boulder, CO: Lynne Rienner. OECD (Organization for Economic Co-operation and Development). 2008. Specialised Anti-Corruption Institutions. Review of Models. Paris: OCDE. Oestreich, Joel, ed. 2012. International Organizations as Self-Directed Actors. A Framework for Analysis. New York: Routledge. OSJI (Open Society Justice Initiative). 2018. Corrupción que mata. Por qué México necesita un mecanismo internacional para combatir la impunidad. New York: Open Society Foundations. Peters, Guy. 2001. The Politics of Bureaucracy. New York: Routledge. Reinalda, Bob, and Bertjan Verbeek. 2004. Decision Making within International Organizations. New  York: Routledge/ECPS Studies in European Political Science. ———. 2005. Autonomous Policy Making by International Organizations. New York: Routledge/ECPS Studies in European Political Science. Rose-Akerman, Susan. 1975. The Economics of Corruption. Journal of Public Economics 4 (2): 187–213. ———. 1978. Corruption: A Study in Political Economy. New York: Academic. Rotberg, Robert. 2009. How Corruption Compromises World Peace and Stability. In Corruption, Global Security, and World Order, ed. Robert Rotberg, 1–27. India: Pentagon Security International. Shelley, Louise. 2005. The Unholy Trinity: Transnational Crime, Corruption and Terrorism. The Brown Journal of World Affairs 11 (2): 101–111.

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Strohmeyer, Hansjörg. 2001. Collapse and Reconstruction of Judicial System: The United Nations Missions in Kosovo and East Timor. The American Journal of International Law 95 (1): 46–63. Thachuk, Kimberley. 2005. Corruption and International Security. SAIS Review of International Affairs 25 (1): 143–152. Trondal, Jarle. 2014. The Autonomy of Bureaucratic Organizations: An Organization Theory Argument. Journal of International Organizations 5 (2): 54–68. Trondal, Jarle, Martin Marcussen, Torbjörn Larsson, and Frode Veggeland. 2010. Unpacking International Organizations. Manchester: Manchester University Press. Waltz, Kenneth. 1979. Theory of International Politics. Reading, MA: Addison-Wesley. WB (World Bank). 1997. Helping Countries Combat Corruption. The Role of the World Bank. Washington, DC: WB. http://www1.worldbank.org/publicsector/anticorrupt/corruptn/corrptn.pdf. Wendt, Alexander. 1999. Social Theory of International Politics. New  York: Cambridge University Press. Williams, Phil. 1994. Transnational Criminal Organizations and International Security. Survival 36 (1): 96–113. Zaum, Dominik, and Christine Cheng. 2012. Corruption and Post-Conflict Peacebuilding. Selling the Peace? London: Routledge.

CHAPTER 2

Hybrid Anticorruption Agencies

Abstract  Hybrid Anticorruption Agencies (HACAs) are an innovative model pioneered by the United Nations (UN) and the Organization of American States (OAS). They were created as international mechanisms of intervention to address problems of political corruption and state capture in Guatemala and Honduras. These HACAs carry an international mandate of fiduciary independence, as well as the full authority to act within states, strengthening their investigative and prosecutorial institutions in order to fight corruption at the highest levels. Their hybrid logic seeks to simultaneously generate independence in political institutions as well as the authority to resist pressures and interference from powerful domestic actors who resist investigation, and sometimes government authorities with whom HACAs are supposed to cooperate with. Keywords  Political corruption • State capture • State frailty • Hybrid organization • International organizations

Hybrid Anticorruption Agencies (HACAs) The International Commission against Impunity in Guatemala (Spanish acronym, CICIG) and the Support Mission against Corruption and Impunity in Honduras (Spanish acronym, MACCIH) represent the © The Author(s) 2020 L. Zamudio-González, International Intervention Instruments against Corruption in Central America, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-40878-7_2

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hitherto only Latin American cases that henceforth will be referred to as Hybrid Anticorruption Agencies (HACAs). HACAs are international organizations created by other international organizations. It can be argued that, for example in the case of CICIG, the UN used its experience dealing with the so-called hybrid tribunals like the ones established in Sierra Leona, Liberia, and Kosovo. The UN has gained important experiences with hybrid tribunals in terms of the negotiations needed to create them as hybrid institutions with formal instruments and viable mandates. These tribunals therefore were designed in such a way as to depend on both national and international personnel, capabilities and resources. HACAs in different ways are molded on some of these same strategies. HACAs possess a mandate, international funding, and support of an international organization, with the legal authority to intervene in sovereign states with the purpose of dismantling political corruption at the highest levels. HACAs are integrated by investigators, international experts, and prosecutors whose activities are financed through the support of the international community. Their mission is to act based on the laws of the nations in which they operate, supporting institutions and authorities to develop an effective detection, investigation, and prosecution of cases of corruption and impunity. HACAs may conduct many other tasks to prevent, train, supervise, advise, and certify government agencies in the fight against corruption, but their backbone is the investigation and criminal prosecution of corruption cases. These faculties are negotiated from the onset with the states, and, as such, vary greatly depending on the case and context. The hybrid design of HACAs is a formidable innovation in anticorruption instruments. Their external component and fiduciary independence allow for distancing themselves from the prevailing interests, pressures, and conflicts of internal political contexts—once they have become inserted in local contexts—resisting the interference of potentially corrupt and powerful national actors who act within the state’s institutions. This is precisely because HACAs do not fully depend on the institutions or the funding of the state, as is the case with national anticorruption agencies (ACAs). This allows for a novel and potentially successful alternative to the national Anticorruption Agency model (ACA), which has been constituted in many countries in recent years. Despite HACAs uniqueness, however, they should not be thought of as a panacea, for by acting within states they are nevertheless prone to be systematically attacked from opposing political forces or other actors who fear loss of privileges. In

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other words, HACAs might be protected against formal interference by domestic actors, but they cannot become isolated from the political system. This is why domestic actors nevertheless can find different venues and strategies to attack the HACAs. For example, by successfully using the argument that HACAs, in practice, affect national sovereignty. Without a doubt, the main strategic challenge of the hybrid design lies in the critical role of national organizations who are supposed to collaborate with the HACA. The interaction between HACAs and state actors, for example, allows the organization to obtain fundamental and deep knowledge about the national context, facilitating the elaboration of a viable action strategy. Moreover, these domestic actors are important to obtain the legitimacy that the organization seeks to obtain in a continuous manner from both external actors and state authorities. On the other hand, this link also triggers strong operational contradictions in the sense that, in order to properly investigate and prosecute, they require cooperation from the same authorities that may also fall under their investigative scope. Reaching the necessary balance between cooperation and autonomy is an important challenge for these organizations. Additionally, the HACAs are needed to build a complex relationship with multiple actors at several levels, including funding nations, host nations, international organizations, and civil society (among others). Theoretically, they are conceived as meta-organizations, in other words, international organizations integrated by other international organizations with highly complex lines of authority to a multiplicity of institutions (Ahrne and Brunsson 2008). How are these contradictions thus reconciled in order to create satisfactory results? In what way they are able to rise above the opposition of criminal actors and corrupt political elites who resist investigation? How might these delicate political balances be sustained and prevent the abandonment of either funders or host nations? How are the ambiguities and limitations of their mandate balanced in order to actually contribute to the fight against corruption? Evidently, the contradictions, dilemmas, and political challenges HACAs face can be overwhelming. Their political conception and design are only two critical steps of the process. In addition, the process of becoming part of a host nation is critical because they are organizations impelled to generate immediate results. Therefore, they must quickly develop strong skills of negotiation with a diversity of social actors in order to gain legitimacy. Their very origin requires an enormous challenge; delicate

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political negotiations that ask sovereign states to accept an international intervention in their internal affairs (Lake 2010). The host country is required to modify important laws and internally negotiate the implications of a de facto impact on its sovereignty. The original conception of the HACAs thus requires a highly complex internal negotiation. Because of this complexity, the design of the HACAs must juggle with a variety of different variables in order to for the HACAs to build their own conditions of survival as soon as possible. All this even means that the organization might need to create the feasibility of its actions: adapting its mandate, sustaining ambiguous commitments or imagine odd or at least unorthodox hierarchic entanglements. This is the main explanation behind the high degrees of ambiguity that often support the mandates of HACAs. How can they conduct autonomous investigations and prosecute cases of corruption at the highest levels of the host country’s government power structure without violating some of the traditional laws of a country based on traditional ideas of “absolute” sovereignty? The practical solutions to this dilemma have not been easy to reach, forcing the mixing of legal designs that allow the HACAs to respect state sovereignty and simultaneously intervene in cases of high political complexity (as most cases in countries with high instances of systemic corruption tend to be). However, challenges of conception and design are only the beginning. Beyond achieving the general mandates embedded in their nature, HACAs are often forced into a daily struggle for legitimacy in their host states. This includes demonstrating results and recruiting allies who will support their processes and function. The fact is that they clearly are organizations that intervene in sovereign nations with an agenda of dismantling political and economic interests, sometimes very powerful ones. This is why their very existence is possible thanks to rigid limitations created through their mandate and organizational design. This is the scenario where the HACAs exist, pushing them to permanently interact, ironically with state and economic actors who are formally their supporters, but on several occasions also the main subjects of their investigation as anticorruption agencies. The mandates of these HACAs are thus standing on a foundation of sophisticated legal and political engineering, with certain degrees of ambiguity with respect to their scope and delineated list of permitted activities. In other words, they are often mandated with certain degrees of freedom, all required to allow the effective operation of the HACAs (but also under the never-ending debate of the limits of the host nation’s sovereignty).

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This ambiguity can thus be understood as an indispensable feature of the design of these organizations, an ambiguity that allows for their very existence but which, at the same time, has important effects on their ability to operate and survive (something that is normal, in different contexts, for all organizations) (Brunsson and Olsen 1979). In order to exist as international organizations with the full power of intervention in host states, they rest on temporary and fragile political agreements characterized by complex balances between control and autonomy, a domestic support that must be constantly constructed and reconstructed, and a careful and credible mandate that sustains the necessary ambiguity that will allow it to operate effectively. Accordingly, HACAs, as international organizations, exist under permanent political turbulence. Their internal conception, constant deal making, need to continuously build and cultivate alliances, obligation to balance between investigating and prosecuting diverse political and economic powers, while at the same time maintain buy-in from other centers of power can certainly add up to a nearly impossible task. Identifying problems and challenges that the HACAs face in practice (as well as the delicate political balances they must reach) is very important in order to fully grasp their strengths and weaknesses as international instruments. This exercise will uncover fundamental lessons related to both the design and execution of international organizations in the context of highly complex intervention. These lessons could also be attractive to the study and understanding of national anticorruption agencies. Before examining the formal structure and functioning of each of these HACAs (Chaps. 4 and 5), it is important to understand the organizational context in which they were conceived and the problems they were designed to address. This will allow for a greater understanding of the issues and corresponding solutions they have been prescribing since their inception. The overall context refers to the problem of corruption understood as “state capture”.1 This perspective has been continuously strengthened in the international discourse, promoting the innovation and conception of novel mechanisms capable of addressing the paradox where the same state that at one level accepts to seriously combat corruption is, in different levels, already captured by powerful actors that benefit from keeping illicit and corrupt activities stable. What can be done when corruption cannot be reduced by the state’s supposed rule of law, and when the very state’s power structures are fundamentally captured by networks of corruption and criminality?

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The following section seeks to conceptualize the phenomenon of political corruption and state capture, as well as the problems that have been converging and gaining ground in the international security agenda. It will also briefly revise the organizational origin of the hybrid logic and its conceptualization in the technical sense.

Political Corruption and State Capture: The Organizational Problem HACAs address the problems of political corruption and institutional state capture, two conceptually different (though related) phenomena. Both corruption and state capture are particularly notorious and difficult to handle in the context of institutional fragility (Johnston 2011, 2016), or in situations that “experience armed conflict, emerge from armed conflict, or are affected by political social, and economic vulnerability, as well as chronic forms of organized violence (UNDP 2012, 17)”.2 Weak states are understood as the presence of a deficit of legitimacy and the capabilities of the state to “provide the basic necessary functions that lead to a reduction in poverty rates, promote development, and safeguard the security and human rights of their populations” (OECD 2007, 2; OECD 2008b, 2011). This relates to situations in which the social contract breaks down due to the incapacity of the government to meet the delivery of services and fundamental human rights (EC 2007, 5). These conditions obviously call for any organizational intervention which would need to be oriented, by principle, to overcome those deficits. State capture, as will be seen shortly, is mostly related to political corruption, and in this sense, constitutes an enormous challenge in the practical sense.3 These are states where corruption has become fully systematic, a feature of the political system where its own actors regularly participate and feed into the dynamics (even to the lengths of adjusting laws to ensure the longevity of those crimes). These are cases where the state is built from stable and normalized corruption dynamics (Johnsøn 2016, 36), and consequently, trigger a paradigm where it becomes easy to diagnose a completely endogenous solution. There is one principal problem with these dynamics: in order to attack political capture, it is required states free of political capture (capable of acting with autonomy, without pressure or intimidation from political groups). It is from there that the importance of the experiment of the HACAs emerges, for they appear as viable

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instruments in deeply problematic contexts where corruption has fully permeated the logic of the state. Conceptualization of Political Capture Corruption and political capture are difficult concepts to define and theorize (Underkuffler 2009). It could be initially argued that corruption, in general, is a phenomenon that implies many distinct acts such as fraud, illicit enrichment, embezzlement, conflict of interest, nepotism, influence peddling, resource diversion, bribery, clientelism, and state capture (among others) (see Table 2.1). As Arellano-Gault argued, corruption can be understood as an umbrella term that collects a broad range of social acts that could be considered undesirable or improper under an abstract and normative difference between the “collective” or the “public” and the private interests or arena (Arellano-Gault 2020). The aforementioned concepts are substantially different from one another (whether it is socially, politically, or economically). For example, in some of them, as Arellano-Gault argues, they are referring to monetary exchanges. But money can be just one of the many elements that sustain the exchange between persons in an act of fraud or conflict of interest (they could be trading influences, for example). Several of these acts take place under a certain level of coercion (as is the case of bribing that also involves explicit or implied threats). The exchange between the extortionist and the extorted, however, can also take place under an agreed upon exchange (such as a multigroup fraud or bribe that benefits both parties). Lastly, the person that commits the improper act may do it not to benefit himself/herself but the organizations he is serving (or both). In all instances, identifying the victim is not always clear-cut. This is common in the context of corruption: all parties involved obtain some sort of benefit, making it difficult to identify victims (where in most cases the victim is a broad aggregate of the concept of “society”) (Arellano-Gault 2020). This implies that all corruption relationships are not discreet or operating in a specific point in time and space never to be repeated again. This is not how corruption operates in the real world. True acts of corruption often have a history where the relationships between involved parties are cultivated and a future where those relationships grow and stabilize. For example, in many situations of fraud, there is no immediate exchange but a construction of deceit and obfuscations in the relationships between different

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Table 2.1  Acts of corruption contemplated by the United Nations Convention against Corruption Act of corruption

Description

Bribery

(a) Promise, offering, or concession to any official, in direct or indirect form, of an improper benefit that would profit themselves or another person or entity with the purpose that such official acts or abstains from acting in the fulfillment of their official duties; (b) request or acceptance by a public official, in direct or indirect form, of an improper benefit that profits them or another person or entity with the purpose that such official acts or abstains from acting in the fulfillment of their official duties. Misappropriation or other forms of diversion by a public official, in benefit of themselves or third parties or entities, of goods, funds, or public or private titles or any other item of value that the official was entrusted with in virtue of their duties.

Embezzlement, misappropriation or other forms of diversion of property by a public official Trading in influence

Abuse of functions

Illicit enrichment

(a) The promise, offering or giving to a public official or any other person, directly or indirectly, of an undue advantage in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage for the original instigator of the act or for any other person; (b) The solicitation or acceptance by a public official or any other person, directly or indirectly, of an undue advantage for himself or herself or for another person in order that the public official or the person abuse his or her real or supposed influence with a view to obtaining from an administration or public authority of the State Party an undue advantage. The performance of or failure to perform an act, in violation of laws, by a public official in the discharge of his or her functions, for the purpose of obtaining an undue advantage for himself or herself or for another person or entity. A significant increase in the assets of a public official that he or she cannot reasonably explain in relation to his or her lawful income. (continued)

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Table 2.1 (continued) Act of corruption

Description

Bribery in the private sector

(a) The promise, offering or giving, directly or indirectly, of an undue advantage to any person who directs or works, in any capacity, for a private sector entity, for the person himself or herself or for another person, in order that he or she, in breach of his or her duties, act or refrain from acting; (b) The solicitation or acceptance, directly or indirectly, of an undue advantage by any person who directs or works, in any capacity, for a private sector entity, for the person himself or herself or for another person, in order that he or she, in breach of his or her duties, act or refrain from acting. (1) The conversion or transfer of property, knowing that such property is the proceeds of crime, for the purpose of concealing or disguising the illicit origin of the property or of helping any person who is involved in the commission of the predicate offence to evade the legal consequences of his or her action; (2) The concealment or disguise of the true nature, source, location, disposition, movement or ownership of or rights with respect to property, knowing that such property is the proceeds of crime.

Laundering of proceeds of crime

Source: UN (United Nations). 2004. United Nations Convention Against Corruption. Vienna: UNODC

organizational agents. In order for a successful instance of fraud to be consolidated, relationships of trust and longevity between agents must be built.4 Given the great complexity in the phenomenon of corruption, it remains useful (or at least, inevitable) to establish standardized, simplified conceptualizations. Therefore, the standard definition of corruption refers to the “abuse of a public post to obtain a private gain” (WB 1997, 8),5 or in a way that does not reduce the phenomenon to the public sector: “the improper use of power to obtain a private gain” (TI web page 2019). In either case, corruption represents a diversion of what is considered the normal responsibilities of public authority, or following Nye, a diversion of the rules that regulate the exercise of a certain kind of private influence (Nye 2002). However, this can be considered a minimalist conceptualization of corruption, one that supposes there is a simple and direct way for, in any society, establishing in a clear way the difference between the collective and the individual interests, the public and the private affairs. As Johnsøn affirms, in totalitarian or patrimonial states the modern concept of a public post simply does not exist. Similarly, in other societies divided by clear

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ethnic lines, the Weberian bureaucratic ideal of assigning public posts by merit often generates more instability than social order (Johnsøn 2016, 3). Acts of corruption are plentiful, complex, and linked to a historical, contextual, and normative construction of “what should be”, which in reality is exceedingly rare if not impossible to see in its most pristine and complete form (whatever the social context). All manifestations of corruption are contextual and are affected by social relationships, cultures, and particular contexts, as Tilly argues (1985). This means that what can be understood as corruption in determined contexts may be seen as normal and expected in others (even as means to achieve political stability). In this way, one of the biggest challenges in the study of corruption is that each of these concepts that is often considered under the umbrella term identify acts and relationships that are starkly different from one another, implying heterogeneous social and organizational relationships. Corruption, being the umbrella term that it is, cannot be easily identified, and designing solutions cannot be anything but a serious practical, intellectual, and political problem. From a theoretical point of view, there are not many obvious empirical frameworks that explain which political or institutional instruments are actually effective to control corruption (let alone eliminate it) (Johnsøn 2016). The debate in this sense is as diverse as it is broad.6 Certain economic theories have attempted to establish clear recipes; theories such as Public Choice, Rent-Seeking, and a New Institutional Economics have been often used by development agencies. This is partly because they are theories that reduce the complexity of the phenomenon to individual decisions and a straightforward scheme of personal incentives. These schools limit themselves to observing the behavior of people as highly influenced by rules and incentives, given their rationalist tendency to seek their own benefits and values (and always seeking ways to maximize them). These theories generally ignore the social, cultural, or historical context of the development of particular institutions, assuming that acts of corruption are the results of individual, rational assessments of the benefits to be gained and the probability for punishment. Thus, the strategy for eliminating corruption becomes simple at first glance: establishing contracts and mechanisms of supervision and sanctioning that increment the cost of the action and the probability of being punished, arriving at a new paradigm whereby the individual assessment changes. In the new paradigm, individual honesty becomes the most convenient means by which any individual can operate.

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Under these parameters, theories such as the New Institutional Economics (NIE) have promoted the belief that controlling corruption is a matter of building institutions that reduce the incentives of corruption to a rational act, making it so costly that the incentive disappears on its own (or no longer rationally viable). Under those sets of beliefs, effective anticorruption institutions basically reduce the costs of each transaction (or the costs of making any viable contract) between individuals and their governments. It is for that reason that a successful anticorruption strategy has been defended in terms of constructing market-type economies. Building societies that come closer to the ideals of free trade and free market brings them closer to fulfilling social structures where corruption becomes an act that can hardly be beneficial or sustained at an institutional level—all traced back to the expense of the transaction itself (Coase 1937; North 1990; Williamson 1981). Due to their rooting in these ideas, principal-agent theories and collective action dilemmas thus offer applicable concepts at the individual and organizational level (which allow for an understanding of the corruption phenomenon). For the principal-agent theory, corruption can justly emerge from the agent’s discretionary capacity to deviate from their agreements with the principal—not just to invest a lower effort on any given task, but also to deceive them and obtain illicit gains (in the context of the contract itself) (Lambsdorff 2007). In these cases, an applicable solution for the principal would be to establish controls and mechanisms of supervision that are much more precise to prevent the agents from utilizing any asymmetries of information to their own benefit. From certain perspectives, the solution under the principal-agent theory is similar to that of rational choice: elevating the costs of any type of deviation from the contract (though, in this case, it is hard to accomplish that goal without also elevating the principal’s costs of supervision). This allows for a key unanswered question: whether the principal is also capable of falling into the temptation of corruption. Under the literature of collective action dilemmas, corruption allows for similar dynamics to the issue known as “tragedy of the commons” (Hardin 1968). This issue refers to situations where multiple individuals who pursue their own rational interests end up damaging the collective good in the long term (Marquette and Peiffer 2015; Mungiu-Pippidi 2006). Corruption can thus become a dilemma of collective action where everyone would be better off without it, but where some actors can reach benefits through it (and conceivably profit without consequences). This of

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course, creating an enormous burden on the collective wellbeing of the majority—shackled with the need to find ways to prosper without the stable and honest social relationships that are indispensable to any society. In political and practical terms, corruption has been seen as a predictable symptom of bad governments, and as consequence, the anticorruption interventions from the international organizations of the last two decades have centered on promoting the idea of “bad governments”. The broad understanding of what constitutes a “good government” becomes one that is “epitomized by predictable, open, and enlightened policy making (that is, transparent process); bureaucratic imbued with a professional ethos; an executive arm of government accountable for its actions; a strong civil society participating in public affairs; and all behaving under the rule of law” (WB 1994, vii). Understanding the nature of corruption and its effects is therefore an important step in designing strategies that can effectively combat and control it. Unfortunately, there is not really a consensus of what constitutes an effective anticorruption strategy (Johnsøn 2016, 13). The efforts applied to this date have advanced in multiple directions without any of them having achieved satisfactory results. The movement in favor of transparency, for example, was based on the assumption that increasing access to information and clarity of regulations, plans, processes, and actions would reduce the opportunities and incentives for corrupt behavior (TI 2019, 2014a, b). As Johnsøn (2016) sustains, however, with time, it has been demonstrated that it is not enough. Access to information does not automatically guarantee increased or better performance in government activities. Other efforts have included civil society in their scope. Accountability is a strategy that links individuals in public posts with the citizenry (the basis of an increasing popularity in favor of watchdogs and other instruments of oversight). In a strict sense, however, there has been little advancement in terms of sanctions and mechanisms that force compliance (Johnsøn 2016, 16). The creation of national anticorruption agencies is another important effort in this sense, and in subsequent chapters, the role of ACAs in relation to the HACAs will be further analyzed. Conceptualization of State Capture Political capture of institutions is a phenomenon linked to corruption and exists in different forms and degrees. Transparency International (TI) defined it as “one of the most pernicious forms of corruption, where

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powerful businesses, institutions, or individuals offer payments and bribes in exchange for the adoption of laws, reforms, decrees or sentences, or offer illicit contributions to parties and political candidates with the purpose of influencing and determining the public policies of a nation, its judicial context, and its economy in the function of personal interests” (TI 2014a, 1). Though it may be argued that all states suffer from some degree of political capture, and even countries with consolidated democratic institutions suffer the sale of votes or campaign financing that is not always properly registered, the concept is more often associated with fragile states. This is mainly due to the fact that their level of infiltration of personal interests is so problematic that the very state seems to operate more to the benefit of those dynamics than the public good itself. The studies of political capture that are linked to endemic corruption are born out of Hellman’s work, who studied these phenomena in the countries of eastern Europe in the middle of the transition from planned socialist economies to market economies (Hellman et  al. 2000a, b). Originally, the phenomenon covered the businesses or firms that paid for the adoption of laws, but Dassah also established that “functionaries in public posts had the ability to capture entire institutions as well” (Dassah 2018, 2). These dynamics have given room to the identification of different degrees and modalities of capture and political criminalization in state institutions. To that end, Naím (2012) identified “mafia states”, Legvold (2009) referred to “criminalized states”, and Green and Ward (2004) pointed to “criminal states”. In their own way, these studies identified the multiple forms and combinations in which the state’s activities have been criminalized, as well as the corrupt processes embedded inside them in both routine and systematic ways. In mafia states, it is not criminals who have captured the state through bribes and extorsion, it is the state itself that has taken control of criminal networks. It does so not to eradicate them, but to place them at its service, and more concretely, at the service of the economic interests of its officials, family, and business partners. In countries such as Bulgaria, Guinea-Bissau, Montenegro, Myanmar, Ukraine, North Korea, Afghanistan, or Venezuela, the national interests and the interests of organized crime are inextricably linked (Naím 2012). According to Legvold, the notion of political capture is what best illustrates this array of situations. “It is not just about officials and bureaucrats who extort businessmen or individuals to obtain contracts or services, it is also individuals or powerful groups (usually linked to criminal networks)

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who take advantage of those links, making use of material rewards or political intimidation to reconfigure the state” (Legvold 2009, 196–197).7 Thus, in the strictest sense, political capture is a form in which corruption may be expressed. Though many types of corruption are directed towards preventing the application and implementation of laws, rules and regulations through acts of bribery, political capture involves the intent of influencing the ways in which laws, rules, and regulations are written in the first place, transforming themselves into a form of legalized corruption (Dassah 2018). In the strictest sense, “capture involves the subversion of public interest through which legality can turn itself into a function of illegality (precisely because laws, rules, and regulations end up becoming the product of an illicit transaction)” (Dassah 2018, 2).

The Hybrid Logic as an Organizational Solution The rationality by which hybrid models of action were adopted in the fight against corruption in Guatemala and Honduras responds to contexts and issues specific to those nations, as goes for the proposals and negotiation processes that were reached between governmental and nongovernmental actors at the national and international level. Inside these agreements, the subject of national sovereignty (as well as the legal functions that each government is willing to let go of in exchange for international support in the dismantling of corruption), is implicitly stated. In these agreements, however, the hybrid logic is clearly drawn from the organizational perspective, akin to the result of an endogenous process of learning and innovation from the United Nations (which was the organization in which the first anticorruption hybrid model was designed). Dickinson argues that hybridization is the product of an “endless process of creative adaptation” (Dickinson 2003, 310), derived from the experiences and instruments previously applied by organizations to tend to the obtained issues and results. Hybrid organizations were not created simultaneously from thin air, but have many predecessors organizationally speaking. Though they are not tribunals and they do not judge past crimes, HACAs recover the experience of the United Nations with hybrid tribunals, which emerged during the first decade of the twenty-first century in response to the failed experience with internationalized mechanisms of prosecution (specifically the International Criminal Tribunal for the former Yugoslavia and the International Criminal Tribunal for Rwanda) (Higonnet 2006; Zimmermann 2017).

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The experience from these tribunals was doubtlessly positive and constructive in historical terms, though it was not free of its own issues and limitations. As a general evaluation, these experiments were really costly for the United Nations, not to mention of limited effectiveness (in terms of their results) and with little ability to serve as foundations for the construction of local frameworks within established justice systems (due to the fact that they were dislocated from their social contexts and affected communities) (UN-SG 2004, 2006; UN 2004). On the other hand, as opposed to internationalized tribunals, local tribunals were formerly considered partial and lacking in independence (either instruments of the victorious in a conflict or weak in infrastructure and human rights or all of the above). The creation of internationalized tribunals pointed towards the resolution of these limitations. Unfortunately, their distance from the affected nations and the participation of international actors led them to operate in a context far away from the populations in question. This created an inevitable loss of legitimacy (Dickinson 2003). Hybrid tribunals, integrated by both national and international judges acting in special changers or domestic jurisdictions, thus became an organizational innovation (Dickinson 2003, 295). Examples include the Special Panels for Serious Crimes in East Timor (2000), Regulation 64 Panels in Kosovo, the Special Court of Sierra Leone (2002), the Extraordinary Chambers in the Courts of Cambodia (2003), and the War Crimes Chambers in the Courts of Bosnia and Herzegovina (2003–2004). In general terms, these tribunals could get established without a resolution from the UN Security Council invoking Chapter VII, had more flexibility to generate internal capacity, were closer to the location in question, and were often better received by the citizenry (Zimmermann 2017). Although many of these tribunals were established as part of a Transnational Administration (as was the case with Kosovo, East Timor, and Bosnia-­ Herzegovina), others were conceived through a formal agreement between the UN and the governments themselves (as was the case with Sierra Leone and Cambodia). These tribunals, as many of the previously cited authors stated, were designed to resolve the main organizational issues of their internationalized and local counterparts. The UN thus contributed to the design and dissemination of a wide range of hybrid tribunals with the intention of supporting the investigation and prosecution of crimes and other serious violations committed during times of conflict (applying a combination of laws as well as both

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national and international resources). It is believed that, due to their hybrid nature, those courts allowed for the shift from their general mandate (serious violations of humanitarian law such as war crimes, genocide, and crimes against humanity) to other crimes contemplated under domestic laws (Zimmermann 2017, 7). According to Zimmerman, this opened the door to a wide range of new experiments (such as CICIG) and a second wave of hybrid tribunals. The CICIG thus emerged as an instrument that walks away from transnational justice and crimes of the past—it is “the first mechanism of hybrid justice that was not established in the context of transnational justice to increase the accountability of past crimes, but rather to build capacity in weak justice systems” (Maihold 2016, 4). With the passage of time, HACAs have evolved towards the very specialized and targeted fight against political and administrative corruption. The emergence of these instruments is a product of the history and learning of the organization, as well as the new emerging realities in matters of peacekeeping. It is also vital to recognize the transnational role of the UN in post-conflict contexts (where it has operated for many years and where it continues to make itself present with greater involvement) in matters of corruption and criminality. Some researchers who specialize in peacekeeping processes and post-conflict institutional building, such as Holt and Boucher (2009), insist on the importance of formally assuming the fight against corruption as part of the mandate of transnational instruments such as peacekeeping operations and expert panels.8 They sustain that, although peacekeeping operations have assumed more complex tasks in the transition from war to peace (and in the practical sense often confront networks of corruption and criminality), the concept of assuming the direct mandate of addressing those issues has not actually been explicitly stated or strongly considered. Expert panels, directed towards the implementation of focalized sanctions, play a much more visible role in the fight against corruption, for they monitor and prosecute acts of corruption as a collateral outcome. This is achieved without their functions being formally integrated or complementing other intervention instruments (which are paradoxically present and act simultaneously in countries like the Democratic Republic of Congo, Sudan and Liberia) (Holt and Boucher 2009, 20). Hybridization thus seems to have been conceived as an organizational solution, less costly and possibly more accepted (not necessarily more successful) than interinstitutional intervention, which is born out of the

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experience with internationalized tribunals, and which has the objective of attending to the phenomenon of corruption in post-conflict contexts. In that way, the HACAs could be seen as legitimate processes of intervention that have been previously accepted and negotiated with host countries, addressing the construction of national capacity through a combination of external actors and practices. Technically, and in its most basic interpretation, hybridization can be understood as any activity or instance where factors, actors, or institutions are combined (be they national, international, public or private) in order to cooperate for the achievement of a shared objective (Schemeil 2013, 221). Hybrid peacekeeping operations, for example, involve two or more international actors who operate simultaneously or sequentially, and perform activities that imply a certain degree of interinstitutional cooperation. Examples include the hybrid operation between the United Nations and the African Union in Darfur, Sudan (UNAMID), or the recent strategic bonding between the European Union and NATO (2018) to jointly confront the new security landscape. These are hybrid operations because “they are not the responsibility of any one institution but are the result of the interaction of at least two policies or cultures of conflict administration” (Tardy 2014, 97). The exchange between diverse institutions that cooperate at different levels “inevitably impacts the nature of the operation and gives a certain form to the decision-making and financing process, as well as the operational practices and accountability mechanisms” (Tardy 2014, 99). The importance of hybridization thus seems to reside in the particular combination of resources and legal and political logics it can trigger. Keith Krause argues that “hybrid peace is the result of the interplay of international (top-down) and local (bottom-up) activities, where the objective and intentions of the external actors is tied with the interests and power of local actors, generating new forms of governance” (Tardy 2014, 99). If this is true, HACAs could then be understood as introducing hybrid models in favor of the fight against corruption, and in favor of the construction of action dynamics that would allow for an interchange between the forces derived from international depoliticized components (as well as any national components in charge of addressing those dynamics). Consequently, that would push forward new forms of international action in matters of governance without clearly substituting national structures from defined spaces of independence and autonomy.

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The Hybrid Logic of HACAs in the Context of National Anticorruption Agencies Preventing or reversing a culture of corruption, understood as political capture, is a major challenge requiring instruments that go beyond bureaucratic or administrative corruption. In the strictest sense, it requires dismantling instances of corruption created and maintained by the same political system that must buy into its own supervision and investigation.9 The fact that a democratic political system of balances and counter-­ balances cannot handle that same institutional dynamic in the dismantling of corruption, and requires the creation of national anticorruption agencies that supervise its own powers is a fascinating paradox. These agencies suffer strong contradictions from their own design, especially with respect to their independence and autonomy in the long term. For that reason, the very international instruments designed to strengthen national anticorruption agencies have signaled the importance of granting them full autonomy and flexibility (though this has not been an easy objective to obtain in practice).10 It is therefore not difficult to understand that, in general, most ACAs have been of limited effectiveness (OECD 2008a). Although paradigmatic cases of success can be readily identified (such as the Corrupt Practices Investigation Bureau in Singapore in 1954 and the Independent Commission against Corruption in Hong Kong in 1974), they seem to be rather outliers than part of the norm (without considering their historical contexts and the political regimes that created and manage those agencies). The variability of faculties, functions, and capacities that ACAs displays is very noticeable, both for arresting, investigating, and accessing financial information, and for confiscating both private and public property. Some may also have limited mandates such as the National Anticorruption Directorate in Romania (DNA) which can only investigate cases previously defined by state authorities (Meagher 2004). According to the OECD, all anticorruption agencies perform the following functions: (i) investigation and criminal prosecution; (ii) prevention; (iii) education and awareness; (iv) coordination and monitoring (OECD 2008a, 22). Depending on the formation agreement reached by the governments, they may get tips from whistleblowers, gather evidence, participate in investigations, offer technical assistance, conduct trainings and other institutional strengthening activities, develop policy recommendations, and participate in disciplinary proceedings. This is a clear example

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of the enormous diversity and variation in the nature of the ACAs and the difficulty in establishing catch-all models. The OECD distinguishes three general models for National Anticorruption Agencies, which should be understood as ideal models that synthesize or concentrate some of their principal features: • Independent Multifunction Agencies: combine preventative, law enforcement, and political consulting capabilities. Their mandate varies depending on the presence of other national institutions involved in the application of specific anticorruption law enforcement mechanisms. In those cases, these agencies often have the function of centralized coordination. Examples include the Latvian Corruption Prevention and Combating Bureau (KNAB) and the Lithuanian special Investigative Service (STT)11; • Law Enforcement Agencies: centered around functions of investigation and prosecution. They may also, if required, conduct preventative functions to develop strategies and anticorruption laws. Examples include the Moldovan Centre for Combating Economic Crime and Corruption (CCECC), the Romanian National Anti-­ corruption Directorate (NAD) and the Croatian Office for the Suppression of Corruption and Organized Crime (USKOK). • Preventive and Coordination Agencies: in their most basic form, they involve commissions with high ranking officials that offer consulting to the head of the executive power or their cabinet. Examples include the Armenian Anticorruption Council and the related Anti-­ Corruption Strategy Implementation Monitoring Commission, the Serbian anti-corruption Council and the Montenegrin Directorate for Anti-Corruption Initiative. In many contexts, HACAs conduct the same functions as ACAs: they are organizations that specialize in detecting, investigating, and preventing acts of corruption in their respective countries. Their hybrid nature, however, provides them with a broader level of independence and autonomy, a feature not common of ACAs due to their full dependence on national institutions. This hybrid logic becomes a substantive feature in situations where a majority of the state’s institutions have been infiltrated by criminal or corruption networks. If corruption is systematized and normalized within the political system, an ACA cannot be the best solution (given its

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vulnerability in front of any formal or informal powers of the infiltrated actors). Curiously, both CICIG and MACCIH have fewer independent investigative and prosecutorial faculties (in both cases significantly controlled and subdued). As will be seen in subsequent chapters, CICIG can conduct independent investigations and initiate prosecutions but does not have its own prosecutorial capacity. MACCIH cannot investigate, initiate prosecutions, or independently prosecute cases. Part of the organizational evolution of CICIG and MACCIH has been in favor of a greater specialization of their functions in the fight against corruption, and a transition towards greater levels of autonomy to strengthen those substantive powers of investigation and prosecution. In sum, the rationality of the HACAs rests in their design as vehicles to combat corruption in contexts of state capture. Their intention is to generate frameworks for independent action and counterweights required by both the Ministerio Público and the institutions in charge of anticorruption initiatives to confront powerful actors. They participate, whether in increased or reduced roles, in processes of investigation and criminal prosecution, as well as in other functions typically designed for ACAs. Despite those similarities with ACAs, the HACAs’ specificity also lies in their hybrid nature; combining the aspects of internal and external actors. They are external actors in the sense that they are fully removed from political dynamics, and they are internal actors due to their familiarity with the political environment, administrative subtleties, and governmental rationalities.

Notes 1. The literature on corruption is large and diverse. In this book, we concentrate in that thread of literature which deals with the analysis of international instruments used to tackle systemic corruption in nation states. 2. For a more precise definition of fragile states, see UNDP (1999, 2004, 2010). 3. Political corruption is equivalent to grand corruption, understood as broad acts by high ranking public officials who distort the correct functioning of the government and facilitate the enrichment of some groups above others (as well as the public interest). See Transparency International (2019). 4. This would be in relation to conflict of interest. Not all conflicts of interest imply automatically corruption. The conflict of interest of any person might be apparent or only potential. The judgement of a public or private official may be affected negatively by a private interest without actually

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occurring, only noted by an external individual (such as a journalist) (Arellano-Gault and Zamudio 2011). 5. For the strategic vision of the World Bank on corruption, see WB (1997, 2000, 2011 and 2012). 6. See the recognized work of Rose-Akerman (1975, 1978, 1999, 2009). 7. According to text  Corruption Perception Index of Transparency International (2008), cited by Legvold, 8 of the 12 post-soviet states are among the 35 most corrupt states in the world. Russia and Ukraine can be considered criminalized (or captured) states. Most of the mini-states that emerged from the separatist conflicts among these states such as Abkhazia, Moldova and Nagorno-Karabakh became criminal states (where the existence of a state fully depends on networks of corruption and criminality). See Legvold (2009). 8. Only the United Nations Provisional Administration in Kosovo (UNMIK) and the United Nations Stabilization Mission in Haiti (MINUSTAH) has had explicit mandates to fight against organized crime and drug trafficking respectively (Holt and Boucher 2009). To review the history of OMPs, see the UN official website at https://www.un.org/es/sections/what-wedo/maintain-international-peace-and-security/index.html. 9. ACAs are not the only anticorruption initiatives at the international level. Other interesting and innovative models include The Independent Joint Anti-Corruption Monitoring and Evaluation Committee (MEC) in Afghanistan (2011), integrated by three international experts and three Afghans in charge of emitting anticorruption recommendations and monitoring the behavior of local institutions and the international community. This instrument receives financing from the United Kingdom, Denmark, and the United States. In contrast to HACAs, however, it does not have independent capacities of investigation (TI 2014b). Another example is the United Nations Experts Panels, which identify and monitor corruption as part as their mandate (which includes the implementation of focalized sanctions) and can be linked to peace operations as is the case of Ivory Coast, Sudan, and Liberia. In contrast to HACAs, however, these expert panels are not able to form internal local capacities (Holt and Boucher 2009, 20–21). 10. Some of the legal instruments that have pushed the strengthening of national anticorruption systems, beyond the United Nations Convention Against Corruption (UNCAC, 2003), include Twenty Guiding Principles for the Fight against Corruption (1997), Council of Europe Criminal Law Convention on Corruption (1998), African Union Convention on Preventing and Combating Corruption (2003), Southern African Development Community, Protocol against Corruption (2005), and InterAmerican Convention against Corruption (1996).

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11. An interesting study of these agencies in eastern European countries is available in Dionisie and Checchi (2008) [http://www.ancorage-net.org/ content/documents/dionisie-checchi-corruption_in_ee.pdf].

References Ahrne, Göran, and Nils Brunsson. 2008. Meta-organizations. Northampton, MA: Edward Elgar. Arellano-Gault, David. 2020. Corruption in Latin America. New York: Routledge. Arellano-Gault, David, and Laura Zamudio. 2011. Organizational and Institutional Dilemmas in Minimizing Conflict Soft Interests in a Democracy: Canada, the United States, and Mexico. In Contemporary Debates on Corruption and Transparency, ed. Irma Sandoval, 401–422. Mexico: UNAM and World Bank. Brunsson, Nils, and Johan Olsen. 1979. The Reforming Organization. London and New York: Routledge. Coase, Roland. 1937. The Nature of the Firm. Economica 4 (16): 386–405. Dassah, Maurice. 2018. Theoretical Analysis of State Capture and Its Manifestation as Governance Problem in South Africa. The Journal for Transdisciplinary Research in Southern Africa 14 (1): 1–10. Dickinson, Laura. 2003. The Promise of Hybrid Courts. The American Journal of International Law 97 (2): 295–310. Dionisie, Dan, and Francesco Checchi. 2008. Corruption and Anti-Corruption Agencies in Eastern Europe and the CIS: A Practitioners’ Experience. http:// w w w. a n c o r a g e - n e t . o r g / c o n t e n t / d o c u m e n t s / d i o n i s i e - c h e c c h i corruption_in_ee.pdf. EC (European Commission). 2007. Towards an EU Response to Situations of Fragility: Engaging in Difficult Environments for Sustainable Development, Stability and Peace, Communication (25/10/2007), Brussels. https://ec. europa.eu/europeaid/sites/devco/files/communication-eu-responseto-fragility-com2007643-20071025_en.pdf. Green, Penny, and Tony Ward. 2004. State Crime. Governments, Violence and Corruption. London: Pluto Press. Hardin, Garret. 1968. The Tragedy of the Commons. Science 162 (3859): 1243–1248. Hellman, Joel, Geraint Jones, and Daniel Kaufmann. 2000a. Seize the State, Seize the Day. State Capture, Corruption and Influence in Transition. Policy Research Working Paper 2444. Washington, DC: World Bank Institute. Hellman, Joel, Geraint Jones, Daniel Kaufmann, and Mark Schankerman. 2000b. Measuring Governance, Corruption, and State Capture: How Firms and Bureaucrats Shape the Business Environment in Transition Economies. Policy Research Working Paper, 2312. Washington, DC: World Bank Institute.

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Higonnet, Etelle. 2006. Restructuring Hybrid Courts: Local Empowerment and National Criminal Justice Reform. Arizona Journal of International & Comparative Law 23 (2): 347–435. Holt, Victoria, and Alix Boucher. 2009. Framing the Issue: UN Responses to Corruption and Criminal Networks in Post-Conflict Settings. International Peacekeeping 16 (1): 20–31. Johnsøn, Jesper. 2016. Anti-corruption Strategies in Fragile States. Theory and Practice in Aid Agencies. Cheltenham, UK: Edward Elgar Publishing. Johnston, Michael. 2011. First Do Not Harm-Then, Build Trust: Anticorruption Strategies in Fragile Situations. Washington, DC: World Bank. Lake, David. 2010. Rightful Rules: Authority, Order, and the Foundations of Global Governance. International Studies Quarterly 54: 587–616. Lambsdorff, Johann. 2007. The Institutional Economics of Corruption and Reform. Theory, Evidence and Policy. Cambridge: Cambridge University Press. Legvold, Robert. 2009. Corruption, the Criminalized State, and Post-Soviet Transitions. In Corruption, Global Security, and World Order, ed. Robert Rotberg, 194–239. India: Pentagon Security International. Maihold, Günther. 2016. Intervention by Invitation? Shared Sovereignty in the Fight against Impunity in Guatemala. European Review of Latin American and Caribbean Studies 101 (101): 5–31. Marquette, Heather, and Caryn Peiffer. 2015. Corruption and Collective Action: Developmental Leadership Programme. Research Paper 32. Bergen, Norway: U4 Anti-corruption Resource Center. Meagher, Patrick. 2004. Anti-corruption Agencies: A Review of Experience. Paper 04/02. Center for Institutional Reform and the Informal Sector at the University of Maryland. http://www1.worldbank.org/publicsector/anticorrupt/feb06course/summarywbpaperacagencies.pdf. Mungiu-Pippidi, Alina. 2006. Corruption: Diagnosis and Treatment. Journal of Democracy 17 (3): 86–99. Naím, Moisés. 2012. Mafia States. Organized Crime Takes Office. Foreign Affairs 91 (3): 100–111. North, Douglass. 1990. Institutions, Institutional Change and Economic Performance. Cambridge: Cambridge University Press. Nye, Joseph. 2002. Corruption and Political Development: A Cost-Benefit Analysis. In Political Corruption: Concepts and Context, ed. Arnold Heidenheimer and Michael Johnston, 281–303. New Brunswick, NJ: Transaction Publishers. OECD. 2007. Principles for Good International Engagement in Fragile States and Situations. Paris: OCDE. ———. 2008a. Specialized Anti-corruption Institutions. Review of Models. Paris: OCDE.

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———. 2008b. Statebuilding in Situations of Fragility: Initial Findings. Paris: OCDE. ———. 2011. International Engagement in Fragile States: Can’t We Do Better? Paris: OCDE. Rose-Ackerman, Susan. 1975. The Economics of Corruption. Journal of Public Economics 4 (2): 187–201. ———. 1978. Corruption: A Study in Political Economy. New York: Academic. ———. 1999. Corruption and Government: Causes, Consequences and Reform. Cambridge: Cambridge University Press. ———. 2009. Corruption in the Wake of Domestic National Conflict. In Corruption, Global Security, and World Order, ed. Robert Rotberg, 66–96. India: Pentagon Security International. Schemeil, Yves. 2013. Bringing International Organization In: Global Institutions as Adaptative Hybrids. Organization Studies 34 (2): 219–252. Tardy, Thierry. 2014. Hybrid Peace Operations: Rationale and Challenges. Global Governance 20 (1): 95–118. TI (Transparency International). 2014a. State Capture: An Overview, Anti-­ Corruption Helpdesk. https://www.transparency.org/files/content/corruptionqas/State_capture_an_overview_2014.pdf. ———. 2014b. Corruption as a Threat to Stability and Peace. London and Berlin: Robert Bosch Stiftung. https://www.transparency.de/fileadmin/Redaktion/ Publikationen/2014/Corruption_as_a_Threat_to_Stability_and_Peace_ TransparencyDeutschland_2014.pdf. ———. 2019. Página electrónica. www.transparency.org/news_room/faq/ corruption_faq. Tilly, Charles. 1985. War Making and State Making as Organized Crime. In Bringing the State Back In, ed. Peter B.  Evans, Dietrich Rueschemeyer, and Theda Skocpol, 169–192. Cambridge: Cambridge University Press. UN (United Nations). 2004. Convención de las Naciones Unidas contra la Corrupción. Viena: UNODC. UN Secretary General. 2004. The Rule of Law and Transitional Justice in Conflict and Post-conflict Societies. Report of the Secretary-General, UN Documents (S/2004/616). ———. 2006. The Rule of Law and Transitional Justice in Conflict and Post-­ conflict Societies. UN Documents (S/2011/634). Underkuffler, Laura. 2009. Defining Corruption: Implications for Action. In Corruption, Global Security, and World Order, ed. Robert Rorberg, 27–47. India: Pentagon Security International. UNDP (United Nations Development Programme). 1999. Fighting Corruption to Improve Governance. New York: UNDP. ———. 2004. Anti-corruption Practice Note. New York: UNDP.

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———. 2010. Fighting Corruption in Post-conflict and Recovery Situations: Learning from the Past. New York: UNDP. ———. 2012. Governance for Peace: Securing the Social Contract. New York: UNDP. WB (World Bank). 1994. Governance: The Worlds Bank’s Experience. Washington, DC: WB. ———. 1997. Helping Countries Combat Corruption: The Role of the World Bank. Washington, DC: WB. ———. 2000. Anticorruption in Transition. A Contribution to the Political Debate. Washington, DC: WB. ———. 2011. Conflict, Security, and Development: World Development Report. Washington, DC: WB. ———. 2012. Strengthening Governance: Tackling Corruption- The World Bank’s Updated Strategy and Implementation Plan. Washington, DC: WB. Williamson, Oliver. 1981. The Economics of Organization: The Transaction Cost Approach. The American Journal of Sociology 87 (3): 548–577. Zimmermann, Lisbeth. 2017. Pragmatism as Principle. The Comeback of Hybrid Courts. PRSF Report 150. Frankfurt: Peace Research Institute Frankfurt.

CHAPTER 3

Theoretical Framework: HACAs as Autonomous Actors

Abstract  As organizations, HACAs present an analytical challenge to the dominant theories of the international relations discipline. For example, the realist tradition does not recognize international organizations as authoritative entities capable of affecting the behavior of states. Generally, realists do not consider that international organizations have autonomy to execute their own courses of action to modify their objectives and mandate. Defining and explaining the nature of hybrid organizations with international mandates to intervene internally in a country requires a different type of ontology and assumptions. Principal-agent and bureaucratic constructivist theories have strongly entered the discipline, offering interesting explanations about the importance of autonomy and independent process of organizational decision-making in international organizations. These theories are key to understanding the nature of HACAs. Keywords  International organizations • Principal-agent theory • Bureaucratic constructivist theory • Organizational autonomy • Operational risks The study of international organizations (IOs) has been the “ugly duckling” of the IR discipline (Verbeek 1998). The discipline has historically resisted studying them as significant actors capable of making a difference © The Author(s) 2020 L. Zamudio-González, International Intervention Instruments against Corruption in Central America, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-40878-7_3

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in world politics. As a consequence, it has not been easy to structure a research agenda affirming that as organizations, IOs enjoy autonomy and ability to perform endogenous action with respect to the states that create and fund them.1 Without understanding IOs as organizations in their own right, it is impossible to grasp the real empirical issues they face in their interaction with states and other organizations. This is also true of the particular group of IOs that have mandates and enjoy international funding, labelled hybrid organizations in this study. They require being studied with a new theoretical framework suitable for analyzing not only their existence but also the foundational elements they have utilized to properly function while juggling both their national and international obligations with the concept of state sovereignty. In other words, the instant IOs arrive in a state, they are in immediate need to defend and maintain their own viability, legitimacy, and permanence. In the case of HACAs, in a context of serious corruption and institutional frailty. In order to continue existing and reaching their objectives, HACAs must negotiate and maintain their relationships not just with the international actors who fund them, but also the domestic actors and institutional mechanisms turning into collaborators, and quite often subjects of investigations and accusations. The leadership and decisionmakers of HACAs must immediately grapple with the following relevant questions: What are the expected challenges they have to overcome in terms of operative design and execution? What specific actors must they depend on for their longevity and survival, and what type of accountability needs to be created with those actors? How HACAs should maintain their legitimacy to continue intervening in a sovereign state, while at the same time prosecute instances of corruption across all levels of its hierarchy? Establishing the answers to such questions is mandatory and critical to hybrid organizations. Unfortunately, it is not always easy to come up with clear answers. It is important to remember that HACAs are innovative artifacts, and as such, do not have a single roadmap to effectiveness. On the contrary, they must continue designing and redesigning their own plans for strategic action, management decisions, and cooperative frameworks in order to combat the resistance from groups or individuals who resist investigation. They do not have a pattern of clear strategies or responses, rather, they improvise, experiment, adapt, and learn as they construct alliances and operational strength: amplifying their tasks and margins for flexibility. Their autonomy within a host state will firmly

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depend on that flexibility, with the risk of falling into the atrophy of becoming both strongly controlled and limited by the political and social forces of their host countries. The objective of this chapter is to formulate a response to the previously expressed questions from two separate theoretical frameworks that have been adapted to the IR discipline and argue in favor of an interdisciplinary research agenda for the study and understanding of IOs. Beyond IR, a vast literature on organizations has been developed and consolidated, specifically what is known as organizational studies, theory of organizations and the “new sociological institutionalism”. These literatures have analyzed IOs under a general ontological principle: all organizations have the ability for adaptation, interpretation, and agency over their own mandates, objectives, and ends.2 However, this study rests on a different literature, which in many ways is closer to the IR tradition. We will speak of principal-agent theories (which emerge from economics) and constructivist bureaucracy (which emerges from sociology). These theories have the particular advantage over traditional organization theory in that they are closer to and better known in the IR field. In this way, both theories will offer empirical evidence for the dynamics of IOs and their practical challenges. Their arguments will thus be useful to identify some critical points of the organizational activity associated with IOs, which is due to the logic of the states that build them (such as regulations and international laws that design the policies between them). On this basis, it is possible to establish a sort of conceptual guide for the analysis of perils and challenges affecting CICIG’s and MACCIH’s operations. This chapter is divided into three sections. The first is a brief look into the study of IOs within the IR discipline. The second is a revision of the principal-agent theory, and the third deals with bureaucratic constructivist theory, with the intention of identifying critical points or sensitive areas that may affect organizations in the execution of their duties.

The Agenda of International Organizations in the International Relations Discipline It is possible to ascertain that, in general terms, the academic interest of IR scholars has centered on states, their relationships and behaviors (Mathiason 2007). Under this paradigm, the international system is seen as a central category derived from the interaction between states without

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a hierarchy or formal dominance above them. This is a system that is derived from an apparent chaos, which emerges from the agencies of each state (and is forced to deal with power structures, opposition, and the support of other states). This is the long-standing realist view that has permeated IR since its inception as an academic discipline. In the same way, the generic concept of the international organization can be interpreted as an idea where a new kind of structural design has emerged from the apparent chaos of these interactions. It could thus be assumed as a self-organizing act: there is no visible head, or ownership, or common objective. All that can be seen from afar is many objectives and actors relating to each other and creating rules and institutions from those interactions over time (as well as limiting each other in their interactions). In other words, there is no possibility of some actor to design the international system, as such. Nevertheless, some actors attempt to design rules, organizations, and regimes in order to affect the system. Under these generic contexts of the international order, self-­ organization and constant calculations (with highly differentiated power quotas between the states), the research agenda has tended to become “state centric”. This means that the actors are the states, and their essence is the power quota they have to direct or attempt to inflict bias in the international system to their own benefit. It is not surprising that international actors such as IOs have then received little attention. Under this vision they are nothing but secondary pawns always dependent on the true significant actors: the states. The study of IOs in IR has existed for many decades, but in reality, it has always played a marginal effort that in the best of cases has been isolated and intermittent (Kratochwil and Ruggie 1986; Rochester 1986).3 The theory known as “realism” in IR has imposed a veil that simplifies the logic of the international arena to the relative distribution of power. Under such a limited perspective, it is very hard to develop a proper analytical perspective to explain IOs as the social and political apparatuses they have become: organizations related to the states under a myriad of schemas, mandates, funding mechanisms, and regulatory capacities. It is even possible to sustain that the study of IOs actually requires an interdisciplinary agenda where IR experts might benefit from conversations with experts in other disciplines who study organizations (corporations, governments, and tribunals among others). Hence, IR scholars might develop an increasing interest for studying IOs (from the perspectives of organizational theory and sociology for example) (Zamudio et al. 2015).

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IOs, in this sense, are not very different from any other type of organization: they are good for building and legitimizing decision-making processes, they operate and exist through people who develop their own internal dynamics, and their organizational internal and external battles are fundamental to their long-term survival. As any other organization, they seek to influence and induce behaviors in other actors through organizational instruments that, once created, inevitably produce unique contexts under constant uncertainty demanding clear decisive action (not to mention the reimagining of new instruments and constant implementation of programs). The realist tradition, with variations and constant updating, dominant in the discipline, would face issues coming to terms with the idea that the organizational dynamics of IOs make sense and may even substantially modify the interests of the states that created them. Sovereign states compete for survival as they are immersed in an anarchic international system where no government or centralized authority is able to effectively regulate them. They cooperate occasionally, depending on their calculation of gains and losses to maximize their own interests, and they assume that a greater international order is achievable through balances of power or hegemonic powers (without IOs becoming significant to the attainment or maintenance of that balance) (Gilpin 1981; Mearsheimer 1994–1995; Morgenthau 1993; Waltz 1979). Put simple, this could be analytically reduced to the behavior of certain powerful states that hegemonize interests and place IOs as simple vehicles for those interests. Neoliberal institutionalism, which resists the realistic tradition, argues that beyond any interests, the behavior of states can also be explained through the existence of institutions that already have their own weight in the international order (Keohane and Nye 1977). Even under conditions of anarchy, states interact in contexts of complex interdependence and require constant cooperation, which is why they rely heavily on institutions (understood as rules and norms that provide certainty and reduce the costs of the same) (Baldwin 1993; Keohane and Nye 1977). From this perspective, institutions matter, and are capable of affecting the cost-­ benefit analysis of states when they do decide to cooperate. This allows them to succeed at reducing information asymmetries (a cost of enforcing contracts), lowering transaction costs, opportunism, and deceit between actors. To neoliberal institutionalists, IOs are considered a type of institution and are used to resolve the problems of collective action.

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Throughout the 1980s, neoliberal institutionalism advanced other types of important institutions to support processes of cooperation and coordination: what was then known as international regimes defined as “a conjunction of principles, norms, rules, and procedures of decision-­ making within which the individual perspectives of the actors converged in any given area of world policy” (Krasner 1983, 2). These regimes are difficult to truly comprehend due to their considerable ambiguity (not to mention the principles, norms, and rules that cannot support any forms of action or response to important events on their own).4 Regimes are materialized through IOs, since, in contrast to IOs, they do not have secretariats, an executive authority, or an administrative structure that could provide them with any type of foundation. By contrast, IOs articulate rules and guidelines and contribute with information through their level of compliance with the signatory states (Martin and Simmons 2001, 2). Examples of this phenomenon would be the World Trade Organization’s (WTO) promotion of the international regime for commercial interchange, the United Nations High Commissioner on Refugees (UNHCR) and its spearheading of the framework for the protection of refugees, and the International Atomic Energy Agency (IAEA) efforts to design the outline and agenda for nuclear nonproliferation treaties. It is important to note that the majority of IOs do not have defined mechanisms for rule enforcement (or even clearly defined rules). This means that beyond the public shaming of infracting states, IOs have absolutely no power to change their behavior or sanction them in meaningful ways, when addressed under regime theory. Although this theory was developed through several analytical currents, Axelrod, Krasner, Young, and others, were primarily interested in defining the ways in which regimes are created and sustained (as well as the processes of interstate coordination), with little concern for the role of IOs as active, independent, autonomous actors with their own interests and worldviews (Axerold 1986; Krasner 1982; Oye 1985; Young 1989). The rationalist current of international regimes revived the same assumptions of classic realism (including a predominance of interests, states as the only significant actors, and a context of anarchy), which, in the long run, prevented regime theory from evolving towards an explanation of organizational influence (Hasenclever et al. 1997). On the other hand, the cognitive approach did incorporate notions of identity and intersubjective action between states and institutions, which allowed for

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the analysis of interactions and consequences emerging from such interactions. This, however, did not lead to an analysis of endogenous dynamics, decision-making processes, or organizational cultures. The presence of IOs in the promotion and upkeep of cooperation processes (even regional integration) also captured the attention of functionalism and neo-functionalism. These theories are qualified as mid-range and emerged throughout the first three postwar decades (Jacobson et al. 1986, 145–146). The functionalism of David Mitrany developed a theoretical approach that highlighted the importance of technical organizations. From their founding, these organizations revisited new forms of authority, which were different from the authority of the states in that it did not derive from the control of a territory or a population, but from their ability to solve transnational issues of a technical (rather than political) nature. Their nature as issues involving several states and complex coordination required a web of administrative bodies directed by specialists who made decisions based on their own expertise regardless of political interests (Mitrany 1975, 99). These administrative bodies, with a secretariat and a permanent headquarters, could generate very specific dynamics of coordination and regulation over time. The dynamics themselves were not very controversial and had spillover effects towards more complex (and likely more sensitive) political interests. The administrative bodies also constituted simple mechanisms of cooperation, but as such, they also had the potential to generate important lessons for the wider field of study as well as extending into new and more positive forms of interstate cooperation (Weiss 1975, 8). Mitrany’s idea of arming transnational problems with horizontal chains of technical bodies gained its own form inside the United Nations through the creation of agencies such as The United Nations Children’s Fund (UNICEF), the Food and Agriculture Organization (FAO), the United Nations Environment Programme (UNEP), and the United Nations High Commissioner for Refugees (UNHCR). These organizations offered technical assistance, served as vehicles for resource founders, provided leadership in humanitarian crises, raised issues onto the international agenda, and are generally perceived as dynamic and purposeful actors. The processes of regional integration studied by Ernst Haas in the 1960s and 1970s recovered many of the functionalist assumptions of Mitrany, while adding a strong political perspective. Neo-functionalism resuscitated the presence and dynamism of political interest groups to advance agencies of cooperation and integration (Haas 1964, 64).

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It is where organized interest groups consciously pressure for joint solutions and are open to transferring their loyalties to international bodies that integration processes can truly be attained, as was the case with the European Coal and Steel Community, transformed into the European Economic Community with the Treaty of Rome in 1957. In general, the IR discipline has studied IOs as nothing but a tool or “unified rational actor” that has a subordinate, yet instrumental role in processes of interdependence between states. There is evidence in many studies that IOs are, indeed, congruent and unified instruments (like any other type of organization) (Clegg 1994; Oestreich 2012; Reinalda and Verbeek 1998). IOs need to build their legitimacy, convince different actors of their usefulness, and create organizational strategies to be viable and capable of achieving their missions in concrete and complex political situations. They require administration, management and strategy. The ability of an organization to meet its own objectives will always hinge on constant confrontation,—implying high levels of uncertainty—as individuals and groups negotiate interests in order to confront tangible problems. This is as real to a corporation as it is to a government agency, and it is no different for IOs. Unfortunately, analyses of IOs are not often conducted from that perspective. Rather, IOs are defined as “formal continuous structures established by agreements between actors (government and non-government) from two or more sovereign states, with the purpose of reaching a shared objective” (Archer 2001, 33) or as “associations established by governments or their representatives who are institutionalized enough to meet in a regular fashion. They constitute decision-making processes overseen by rules, a staff, and a permanent office” (Shanks et al. 1996, 593). These definitions contribute to the existence of IOs beyond their formal mandate. It is well known that organizations often operate in two distinct worlds: formal and informal. The formal instance is critical to the understanding of what an organization does, accomplishes and has the potential to grow into. It is limited, however, when used as the sole means to a holistic understanding of an organization without any consideration for the informal aspects. Studying an organization based on its official documents and definitions would be like studying a government based on its constitution. The study of IOs as important actors of world politics has been gaining traction in other disciplines, where a strong tradition of organizational studies already exists (Ahrne and Brunsson 2008; March and Olsen 1984). Theories that emerge from economics (such as the principal-agent theory), and sociology (such as the bureaucratic constructivist theory), assume an ontological principle which, in opposition to IR, grants them a

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high degree of autonomy and influence. In tandem with these theories, there is an entire intellectual body of organization theories and new sociological institutionalism that offers empirical research and sophisticated models for describing the nature, decision-making processes and dysfunctionalities of IOs. We will now briefly describe the principal-agent and bureaucratic constructivist theories, two theories that have made headway into the IR discipline in order to analyze IOs. Both theories identify the sources of autonomous action of IOs, as well as some challenges and issues these confront in their execution. Their arguments trace certain elements of analysis that are useful to grasp the ways in which IOs (especially HACAs) move and act once created. Principal-Agent Theory The starting point for this theory is the delegation of authority from a principal to an agent through the development of a contract (Hawkins et al. 2006, 79). The contract empowers the agent to act in name of the principal and assists the agent in performing important functions that the principal may not be interested in performing unilaterally (whether due to costs or similar reasons). In this definition, delegation is understood as a conditional concession of authority, limited in both time and space, with the possibility of being revoked (Hawkins et  al. 2006). The principals are those who have the capacity of delegating authority and designing the contract, signaling the faculties and functions of the agent as well as the mechanisms of control (since the agent does not always act as the principal expects). Contracts stipulate general conducts, but those stipulations cannot obviously predict and regulate all the actions of an agent in the completion of the assigned tasks. From this imperfect supervision, the autonomous power of action for the agent emerges, or “the range of potential action available to the agent once a principal has established mechanisms of control” (Hawkins et al. 2006, 8). If the principal must supervise all the processes, regulate all the actions, and establish all the mechanisms of action for the agent, the delegation loses its purpose and sense of opportunity (becoming unnecessarily costly). Principals know that there is a strategic game of discretionary decisions and control that is inherent to their relationship with the agents. It is in this strategic game that the autonomy of the agent could even be managed to become favorable to the principal in the pursuit of better and greater objectives.

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The theory does accept, however, that both the agent and the principal have their own interests, and as rational actors, will seek to meet them above all other things. If the interests of the agent are not aligned with those of the principal, a series of undesired behaviors can develop for the principal. Examples would be “agency slack”, where the deviation of interests skews towards the interests of the agent; “shirking”, where the agent minimizes the effort to reach the entrusted objectives, or “slippage”, where the agent seeks its own objectives and preferences. If the agents do not meet the contract or satisfy the interests of the principal, the principal may punish them, reducing their assigned funding or abandoning the contract altogether (Hawkins et al. 2006, 8). Applied to IR, this theory opens up an interesting debate regarding the independent behavior of IOs, understood as agents of the principals (in this case the states). The states are principals because they have the ability of delegating responsibilities to IOs. Because IOs, by their very nature, are integrated by experts, they are well aware of how to conduct their own functions and meet their obligations (which is why they are being tasked to complete functions that the state does not know, want, or have the ability to complete by itself). IOs, however, often make use of information asymmetries to take advantage of the heterogeneity of preferences derived from the existence of multiple agents. In this way, they expand their margin of independent action and adapt or reinterpret their mandates as needed, acting beyond the margins of their own delegated authority (Reinalda and Verbeek 2004, 21–22). Controlling IOs is a key but costly task for states. There is no doubt that if even basic supervision requires enormous time and resources, the delegation of tasks might lose its benefits. On the other hand, if states do not establish oversight and control mechanisms, IOs might bend the rules of the contract and deviate from the established interests. In the same way, when the contract is vaguely written, the independent margin of action of IOs is amplified. An example of this would be the lax description of formal functions that the UN Secretary General must perform, some of them not even specified in the Charter of the organization. Thanks to this ambiguity, the UN Secretary General enjoys considerable flexibility in order to act without being fully controlled by the member states (Haac and Kille 2012).5 For instance, there have been various initiatives of different Secretary Generals concerning new issues in the agendas for peace and democracy. The principal agent theory is on the cutting edge of an intellectual exercise implying the study of a strategic relationship between states and

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IOs (a body of research that enlightens the game of complex balances between rational actors seeking control and autonomy). For IR, this theory adds to the idea that IOs are independent actors with the ability to distance themselves from the interests of the states in order to follow their own objectives (Oestreich 2012, 13). They also add an understanding of conditions and challenges to the exercise of independent action: the possibility of contract abandonment or their potential replacement by other organizations, the challenges of control and supervision implied by the principals, and the difficulty in reconciling the interests of multiple principals (among others). In general terms, these are some of the important conditions that affect the strategic behavior of IOs. The organizational challenges identified by this theory will be analyzed for each of the HACAs (CICIG and MAACIH) in the subsequent chapters. It could be said that, from the perspective of the principal-agent theory, hybrid organizations confront three risks or challenges: contract abandonment, control, and heterogeneity of preferences. The theory observes that organizations face the permanent threat of abandonment by their principals due to the fact that they are not always able to perform their assigned tasks (or at least not respecting the outlined process or timeline). The United States and Israel, for example, left the United Nations Educational, Scientific and Cultural Organization (UNESCO) as an act of protest against their “anti-Israel bias” (BBC 2017). Gambia, South Africa, and Burundi announced their resignation from the International Criminal Court (ICC) due to its insistence in persecuting African cases in detriment to other investigations (Ferrer 2016). When a single principal is present, abandonment can be fatal to an organization. When there are several principals, abandonment may or may not be serious depending on the economic and political weight of the principal (Ahrne and Brusson 2008). HACAs regularly confront these risks due to the fact that host states are not always willing to be flexible to interventions, funders are not always able to provide unlimited resources, and multinational organizations (either the UN or the OAS) may not want to face conflicts and interrogations generated by the constant debate of national sovereignty. The level of intervention within host states turns HACAs into models that, at times, can be seen as highly intrusive, problematic, or costly (which only increases the threats of abandonment). The theory also speaks to the important role played by the agent’s control and monitoring mechanisms. Principals will attempt to make agents

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adequately perform their tasks to the best of their abilities, but they cannot micromanage or oversee many of the details on a daily basis. Thus, many of the most important mechanisms of control are established in the contract, specifically the faculties and powers granted for the completion of the mandate. HACAs were designed with various mechanisms of control, as will be seen further ahead in this study. The first of these mechanisms is the process of frequent contract renewals (every two years for CICIGs and every four for MAACIH). Accordingly, their powers and features are conditioned to limited periods of time and their role is constantly evaluated by the principals. HACAs are not permanent organizations, and thus, their existence is never guaranteed. On the other hand, a second control mechanism identified in this work is that of specific limitations imposed in the design of the mandate itself, which restricts investigation and prosecution capabilities of the HACAs. These faculties are critical to any anticorruption organization, and the way in which they are conceived in regard to them is fundamental. There is an important difference between hybrid organizations with independent powers and national state anticorruption organizations, such as the original idea of the International Commission for the Investigation of Illegal Bodies and Clandestine Security Groups (CICIACS) with the CICIG. CICIG is an organization that is commissioned with independently investigative capacities but can only initiate and guide any prosecution-­related processes it pursues, with the collaboration of governmental agencies. MACCIH has a different design, where both functions are restricted and tied to the idea of “collective action” with government authorities, which at the end gives MACCIH almost no independent room for maneuver. The way in which these functions are conceived thus establishes the required mechanisms of control for the principal (even if the principal cannot regulate all the agent’s actions and activities in great detail). Lastly, the theory also provides clear cautions against the complexity of the relationship between multiple principals and heterogeneous interests. This aspect can play in favor of the organization if it understands how to exploit the heterogeneity of interests between principals, gaining a bigger margin of action and autonomous decision-making. This also allows the organization to offer results with different criteria that may be significantly easier to obtain. The existence of multiple principals—receptive states, funder states, or international organizations—will distort the emergence

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of a single line of action, a single interest, or a single integrated vision. Under different principals, mandates are more complex, tend to be more ambiguous (to accommodate so many different interests) and produce a more complex situation for the agent. Nevertheless, the agent might gain more discretion at the cost of more complexity to satisfy the different principals. The fight against corruption is the purpose of all HACAs. For the governments and multilateral organizations launching them, it is important to prevent or revert the capture of the state’s institutions. Once given life, however, public officials and political elites (who in theory would be committed to the fight against corruption), resist, boycott, and threaten to abandon the organizations and their agreements. The abandonment of funders or supporting organizations is constantly pressuring these HACAs to prove their own usefulness and effectiveness, which to them, depends on their ability to act as specialized bodies with strong powers of investigation and prosecution. Constructivist Bureaucratic Theory The constructivist bureaucratic theory has its roots in sociological institutionalism and emerges from the instrumental and economy-centered conception of IOs, conferring them power and autonomy as an intricate feature of their design (Barnett and Finnemore 1999, 707).6 For these authors, IOs are bureaucracies (or associations of domination in the Weberian sense), with an authority in the rational-legal sense based on rules and their expert knowledge in the domain. In bureaucracies, authority is rational, based on the development and respect for impersonal and precise rules, derived from an expert knowledge and merit-based processes. As such, bureaucracies turn into ideal mechanisms to address highly complex and relevant problems in the modern world. Examples would be the production and administration of atomic energy, financial stability and economic crises, the containment of infectious diseases, or global warming. Their influence, based on domain expertise and impersonal rules, gives IOs legitimacy and even contributes to the social construction of reality (Barnett and Finnemore 1999, 707). Their submission and obedience to a legal authority “does not derive from the belief or devotion to charismatic individuals or their masters ordered by tradition…but on an impersonal link, generally defined as “duties of the post” (Barnett and Finnemore

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1999, 708). Their authority is both technical and apolitical, since public officials present themselves as contributors to other legitimate and commendable interests. Organizational culture, understood as the “rules, rituals, and beliefs embedded in an organization and its subunits”, has an overpowering influence in the worldview of its individual members. It provides interpretative frameworks that they use to generate meaning (Barnett and Finnemore 2004, 39). Thus, through their own rules, IOs generate new understandings, interests, and purposes. Owing in large part to the power conferred to them by their rational legal authority, bureaucracies classify the world creating new categories of actors (such as refugees), defining interests, fixing definitions (such as the promotion of human rights), and both articulating and promoting norms (such as markets and democracy). In that way, they create rules that contribute to the social understanding that affects the decisions, interests, and identities of other actors (Barnett and Finnemore 1999, 710). Following a long-standing tradition in the early twentieth century sociology, this theoretical approach rediscovered that strict adherence to rules can also lead to dysfunctional or pathological behaviors that are materialized in the displacements of ends, the delaying of responses, the inadequate use of instruments, and in the worst cases: complete paralysis (Barnett and Finnemore 2004, 39). The dysfunctional or pathological explanation is one that identifies bureaucracies as social and cultural forms that can be isolated from their contexts. Rules and routines that facilitate efficient responses can thus compromise the means-ends rationalities that guide organizational behavior—“they can generate a routine behavior of bureaucrats, and lead to a normative and parochial social environment where the connection between the organization and the social environment is inherently weak” (Barnett and Finnemore 1999, 718). By the same token, something similar can occur with the intent of overcoming individual rationality through structures that combine field experts divided into separate responsibilities, since this is a perfect environment for the emerging of subdivisions or subcultures that may easily fall into contradiction and competition for resources and visibility. Barnett and Finnemore analyze five dysfunctions of IOs, noting that many more could certainly exist. They are the following: 1. Irrationality from rationality—when rules and bureaucratic procedures determine the objectives of the organization and, instead of

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designing new instruments to tend to the new realities, organizations end up applying previously designed instruments. 2. Bureaucratic universe—referring to the ways in which organizations erase the contextual differences and particularities based on the argument that their technical knowledge is universal and must apply just as effectively to problems in other contexts. 3. Normalization of deviation—when an organization stops following the rules due to a specific and well-founded reason and shortly thereafter, the deviation is institutionalized and normalized, accepting a response or behavior that was originally unacceptable or even unthinkable. 4. Isolation—when specialized groups interpret reality or a problem and isolate themselves (or reject another source of information or interpretation). 5. Cultural conflict—derived from the division of labor characterized by IOs which may lead them to develop subcultures and competition (Barnett and Finnemore 1999, 720–724). Certainly, the study of IOs as autonomous and purposeful actors is not limited to Weberian bureaucracies. There is a vast literature from other disciplines such as sociology, anthropology and public administration that have studied internal and cultural dynamics of bureaucracies and offer interesting lessons regarding the role of rules in organizational behavior. March and Olsen argue, for example, that individuals act more based on identity than on rules, following a “logic of appropriateness”, or in function of what is expected in situations and roles (March and Olsen 1984, 738–740). Agents are not guided exclusively in terms of maximization or the quest for gains but by the confection of meanings and collective understandings in that bureaucratic arenas are made of structures and processes that defend values, norms, interests, identities and beliefs (March and Olsen 1984, 740–741). Other studies hold that not all organizational behavior can be explained in terms of the formal Weberian model, a stance that has paved the way for critical literature regarding “institutions understood as inhabited”, constructing explanations that are much more sensible to power dynamics and delegation within bureaucracies, incorporating elements of informal behavior, unwritten rules, contradictions and of deliberate splits (Hodson et al. 2012). These works are valuable additions to studies of IOs in a desegregated way as “combined administrative systems” that coexist, compete, and overlap in dynamics of behavior, identities and roles (Trondal et al. 2010).

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For Trondal, IOs do not just act with limited resources and ambiguous mandates, forever victims of state or group interests but are also subject to pressure for different logics of action: supranational, inter-governmental, departmental, and epistemic, as well as immersed in contexts that are multidimensional, multi-dynamic, and multicultural (Trondal et al. 2010, 15). In a similar way, Dijkzeul and Beigbeder analyze IOs as agents in two arenas, where once agreements are reached and decisions are made, they must acquire an organizational intelligence to act in diverse landscapes, usually characterized by conflict where they confront governments and local power structures that occasionally oppose and resist international actors (Dijkzeul and Beigbeder 2003, 323). In these contexts, IOs must construct real alternatives of action for which they must reinterpret and often bend the formal rules to avoid getting stuck in the middle of contextual uncertainty, political violence, or founder abandonment. This study does not intend to take on that literature. Much research is required on this topic, which is known as the “second part of IOs”, secretariats (Claude 1964) or the civil service (Mathiason 2007), with their own competitive frameworks, creativity, and political games. The constructivist-bureaucratic theory, as applied to IOs, allows for an understanding of their behavior. IOs act according to rules and procedures, not in search of efficiency, but in search of legitimacy and survival. One specific case analyzed by Barnett is the genocide in Rwanda (1994), when the United Nations, instead of incrementing the number of delegated troops in the country to prevent the genocide of the Tutsi population, decided to retire all blue helmets based on a bureaucratic reasoning: “there is no peace to maintain” (for the agreement between the parts had been reached). Thus, the organization could not involve itself in an armed conflict for it would violate its own rule of neutrality. Furthermore, the organization feared another failure like those of Somalia or Kosovo, with devastating consequences for its image and global pertinence (Barnett and Finnemore 2004; Dallaire 2003). The constructivist-bureaucratic theory argues that the actions of IOs matter and have a real effect on international policy. It does not study the conditions that facilitate IOs independent action but is merely interested in what IOs do with the power and room for maneuver they have been granted by the rules (Oestreich 2012, 13). From this positioning, the power of IOs is not delegated, it is constitutive. IOs interests are not given, they are also constructed in the interaction with other subjects and their alignment with the “rules”. The analysis of processes whereby an

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organization interprets its own mandate and seeks to strengthen or extend it, contributing to a social reality, is very important for those who seek to understand the true contribution of IOs to global politics. The theory, as applied to HACAs, also illuminates certain important elements related to the functioning of organizations. However, observations are directed more towards the ways in which organizations interpret and implement their own mandate and how they understand the problem: what they seek to solve and for whom. Similar to principal-agent theory, this posture identifies operational risks and issues that can be applied to a study of HACAs. The risks are defined by the same theory as bureaucratic disfunctions, which captures the ways in which the organization isolates itself from its own environment, interpreting reality in terms of strict and inflexible rules. Hence, the operational problems of IOs can be derived from an excessive attachment to rules, and consequently, their inability to display any kind of flexibility with the course of the organization. On the other hand, this theory alerts to the capacity of IOs to construct reality by contributing new concepts, actors, and meanings. When new concepts are offered, their tasks, budgets and mandates are amplified. An example derived from the CICIG would be the creation of the concept of Illicit Economic and Political Networks (IEPN), a category designed by the last CICIG commissioner, Ivan Velazquez, to provide a clearer and operative definition. As will be seen in the next chapter, this category was very important in reorienting the work of the CICIG; to lend it agency that would be much more specialized in the fight against corruption. The bureaucratic theory sustains that HACAs confront different subcultures of rules, derived from national contexts and the proper division of labor within the organization that place them in a vulnerable position where, when a clear and established authority is lacking (as was the case with MACCIH in Honduras), intraorganizational conflict is accentuated and may bring the entire body into paralysis. The Table  3.1 below summarizes the delineated elements from both revised theories. These elements, which highlight potential for risk in terms of the design and, in practice, will be utilized as analytical lens to revise the work of CICIG and the MACCIH in the next two chapters. As can clearly be observed, these theories are not mutually exclusive, but in some senses complimentary. Both recognize IOs as legitimate structural organizations rather than instruments of a larger state-driven interest, and despite their limitations regarding design or relationship with other actors, both recognize that IOs have the ability to affect the

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Table 3.1  Elements of risk and limitations in the execution of the organizational mandate indicated by theories Risks

Limitations from design and operation

Principal-Agent theory

Abandonment and contract cancelation

Bureaucratic constructivist theory

Bureaucratic Dysfunctionalities

Power delegated by the states with mechanisms of control (non-permanent contract and restrictions in substantive investigatory and prosecutorial functions). Complex relationship with multiple principals Power derived from rules and field expertise skew towards isolation. Complex internal relationship due to division of tasks and subculture of rules

Source: Compiled by the author

behavior of those actors (including states). For hybrid organizations that intervene in states, it is interesting to observe how these perils and limitations manifested themselves, as well as the ways in which they were able to achieve sustainability and turn into successful organizations in the fight against corruption, amplifying their tasks and ranges of intervention. In the next chapters, the case studies of CICIG and MAACIH will be analyzed separately. The intention is to examine the processes by which they were created and sustained, with particular attention to the hybridization logic that gave them their form, as well as the limitations and critical perils they must face, as identified by the theories discussed in this study.

Notes 1. The study of International Organizations (singular), understood as a process of governance and regulation of international relations, is an independent field that has been studied profusely since the origin of the discipline (Claude 1964). The magazine International Organization (IO) exists since 1947 and in it many research articles in this research agenda have been published. 2. For further on this literature, see Clegg (1994), DiMaggio and Powell (1983), March (1988, 1997), March and Olsen (1984, 1989), Reinalda and Verbeek (1998, 2004), Trondal et al. (2010) and Verbeek (1998). 3. An exception is the work developed by Cox and Jacobson (1973), The Anatomy of the Influence, where the process of decision-making that has place at the interior of IOs and the diverse actors who exert influence are studied.

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4. The theory of regimes has been questioned due to the ambiguous ways their basic categories have been defined, and to the different tangents that impede a coherent theoretical model. To revise some of the questionings of this theory, see James Caporaso (1993) and Susan Strange (1982). 5. This phenomenon has given room to an interesting debate regarding the range of actions between what can be a subordinate secretariat of the states “an administrator”, or a secretariat with initiative and leadership “a general”, as well as the dynamics these distinct roles generated. See Chesterman (2007). 6. The constructivist theory is ample and also centers in the study of the states, their interests and identities, as well as the ways in which international norms affected their behavior. One of the central arguments is that state identity is constituted through the subjective interaction with other states or actors, and that states assume, and act based on an expected behavioral logic according to their identity. See Finnemore and Sikkink (2001) and Wendt (1992).

References Ahrne, Göran, and Nils Brunsson. 2008. Meta-organizations. Northampton, MA: Edward Elgar. Archer, Clive. 2001. International Organizations. London: Routledge. Axerold, Robert. 1986. An Evolutionary Approach to Norms. American Political Science Review 80: 1095–1111. Baldwin, David, ed. 1993. Neorealism and Neoliberalism. The Contemporary Debate. New York: Columbia University Press. Barnett, Michael, and Martha Finnemore. 1999. The Politics, Power and Pathologies of International Organizations. International Organization 53 (4): 699–732. ———. 2004. Rules for the World: International Organizations in Global Politics. Cornell: Cornell University Press. BBC. 2017. Estados Unidos anuncia su salida de la UNESCO por preocupaciones que incluyen un sesgo contra Israel. BBC Mundo. octubre 12. https://www. bbc.com/mundo/noticias-internacional-41599664 Caporaso, James. 1993. Hacia una sociología de la organizaciones internacionales: crítica de la teoría del régimen, perspectivas futuras. Revista Internacional de Ciencias Sociales. Las Organizaciones Internacionales. Perspectivas teóricas y tendencias actuales 138: 557–569. Chesterman, Simon, ed. 2007. Secretary or General? The UN Secretary-General in World Politics. New York: Cambridge University Press. Claude, Inis. 1964. Swords into Plowshares. The Problems and Prospects of International Organization. New York: Random House.

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Clegg, Stewart. 1994. Power and Institutions in the Theory of Organizations. In Toward a New Theory of Organizations, ed. John Hassard and Martin Parker, 24–53. New York: Routledge. Cox, Robert, and Harold Jacobson, eds. 1973. The Anatomy of the Influence. Decision Making in International Organization. New Haven: Yale University Press. Dallaire, Romeo. 2003. Shake Hands with the Devil: The Failure of the Humanity in Ruanda. Canada: Random House. Dijkzeul, Dennis, and Yves Beigbeder, eds. 2003. Rethinking International Organizations: Pathologies and Promise. New Haven: Yale University Press. DiMaggio, Paul, and Walter Powell. 1983. The Iron Cage Revisited: Institutional Isomorphism and Collective Rationality in Organizational Fields. American Sociological Review 48 (2): 147–160. Ferrer, Isabel. 2016. África rompe con La Haya. El País. octubre 26. https://elpais. com/internacional/2016/10/26/actualidad/1477477650_280212.html. Finnemore, Martha, and Kathryn Sikkink. 2001. Taking Stock: The Constructivist Research Program in International Relations and Comparative Politics. Annual Review of Political Science 4 (1): 391–416. Gilpin, Robert. 1981. War and Change in International Politics. Cambridge: Cambridge University Press. Haac, Kirsten, and Kent Kille. 2012. The UN Secretary-General and Self-directed Leadership. Development of the Democracy Agenda. In International Organizations as Self-directed Actors. A Framework for Analysis, ed. Joel Oestreich, 29–60. New York: Routledge. Haas, Ernst. 1964. Beyond the Nation State: Functionalism and International Organization. Stanford: Stanford University Press. Hasenclever, Andreas, Peter Mayer, and Volker Rittberger. 1997. Theories of International Regimes. Cambridge: Cambridge University Press. Hawkins, Darren G., David A. Lake, Daniel L. Nielson, and Michael Tierney, eds. 2006. Delegation and Agency in International Organizations. New  York: Cambridge University Press. Hodson, Randy, Andrew Martin, Steven Lopez, and Vincent Roscing. 2012. Rules Don’t Apply: Kafka’s Insights on Bureaucracy. Organization 20: 256. https://doi.org/10.1177/1350508412443581. Jacobson, Harold, William Reisinger, and Todd Mathers. 1986. National Entanglements in International Governmental Organizations. American Political Science Review 80 (1): 141–159. Keohane, Robert, and Joseph Nye. 1977. Power and Interdependence: World Politics in Transition. Boston: Little Brown. Krasner, Stephen. 1982. Structural Causes and Regime Consequences: Regimes as Intervening Variables. International Organization 36 (2): 185–205. ———. 1983. International Regimes. Ithaca and London: Cornell University Press.

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Kratochwil, Friedrich, and John Ruggie. 1986. International Organization: A State of the Art on the Art of the State. International Organization 40 (4): 753–775. March, James. 1988. Decisions and Organizations. Boston: Basil Blackwell. ———. 1997. Understanding How Decisions Happen in Organizations. In Organizational Decision Making, ed. Zur Shapira, 9–32. Cambridge: Cambridge University Press. March, James, and Johan Olsen. 1984. The New Institutionalism: Organizational Factors in Political Life. American Political Science Review 78 (3): 738–749. ———. 1989. Rediscovering Institutions: The Organizational Basis of Politics. New York: Free Press. Martin, Lisa, and Beth Simmons, eds. 2001. International Institutions: An International Organization Reader. Cambridge, MA: Institute of Technology Press. Mathiason, John. 2007. Invisible Governance: International Secretariats in Global Politics. Bloomfield, CT: Kumarian. Mearsheimer, John. 1994–1995. The False Promise of International Institutions. International Security 19 (3): 5–49. Mitrany, David. 1975. The Functional Theory of Politics. London: Martin Robertson. Morgenthau, Hans. 1993. Politics Among Nations. The Struggle for Power and Peace. New York: McGraw-Hill. Oestreich, Joel, ed. 2012. International Organizations as Self-Directed Actors. A Framework for Analysis. New York: Routledge. Oye, Kenneth. 1985. Explained Cooperation under Anarchy: Hypotheses and Strategies. World Politics 38 (1): 1–24. Reinalda, Bob, and Bertjan Verbeek, eds. 1998. Autonomous Policy Making by International Organizations. New York: Routledge. ———, eds. 2004. Decision Making Within International Organizations. London: Routledge. Rochester, Martin. 1986. The Rise and Fall of International Organizations ad Field of Study. International Organization 40 (4): 777–813. Shanks, Cheryl, Harold Jacobson, and Jeffrey Kaplan. 1996. Inertia and Change in the Constellation of International Governmental Organizations 1981–1992. International Organization 50 (4): 593–627. Strange, Susan. 1982. Cave! Hic Dragons: A Critic of Regime Analysis. International Organization 36 (2): 479–496. Trondal, Jarle, Martin Marcussen, Torbjörn Larsson, and Frode Veggeland. 2010. Unpacking International Organizations. The Dynamics of Compound Bureaucracies. Manchester UK: Manchester University Press. Verbeek, Bertjan. 1998. International Organizations. The Ugly Duckling of International Relations Theory? In Autonomous Policy Making by International

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Organizations, ed. Bob Reinalda and Bertjan Verbeek, 11–27. London: Routledge. Waltz, Kenneth. 1979. Theory of International Politics. Reading, MA: Addison-Wesley. Weiss, Thomas. 1975. International Bureaucracy: An Analysis of the Operation of Functional and Global International Secretariats. Lexington, MA: Lexington Books. Wendt, Alexander. 1992. Anarchy Is What States Make of It: The Social Construction of Power Politics. International Organization 46 (2): 391–425. Young, Oran. 1989. International Cooperation: Building Regimes for Natural Resources and the Environment. Ithaca, NY: Cornell University Press. Zamudio, Laura, David Arellano, and Jorge Culebro. 2015. Puentes, fronteras y murallas disciplinarias en torno a las Organizaciones Internacionales. México: CIDE.

CHAPTER 4

The International Commission Against Impunity in Guatemala (CICIG)

Abstract  The International Commission Against Impunity in Guatemala (CICIG) was created in December 2006 through an agreement signed between the government and the UN, with the mandate of identifying and disarticulating illegal organizations and clandestine security apparatuses (CIACS). Its hybrid design, financial independence, and functional autonomy sought to isolate it from domestic political interference, though in practice, it has always faced some kind of resistance and obstructionism. In response to this context, CICIG reinterpreted its mandate in favor of a greater operational specialization and modification of its action strategies. The political dynamic that CICIG had to create in order to exist and maintain viability is a fundamental issue to study in order to understand its success and also the process than ended with its demise. Keywords  Anti-Corruption Agency • Illegal organizations • Clandestine security apparatuses • Illicit economic-political networks • Guatemala The International Commission against Impunity in Guatemala (CICIG) was not built strictly as an anti-corruption organization. Its origin and nature are more linked to the current of international intervention mechanisms that sought the strengthening of rule of law and the abstract © The Author(s) 2020 L. Zamudio-González, International Intervention Instruments against Corruption in Central America, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-40878-7_4

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objective of a global reduction of impunity (Hudson and Taylor 2010). CICIG began its operations with that mandate and built its first few intervention mechanisms under those parameters. Throughout the years, the organization has slowly moved towards the investigation of money laundering or campaign finance crimes. Actually, it was this last decision that caused the ultimate conflict with former Guatemalan President Jimmy Morales, which ended with the refusal of the government of Guatemala to renew the agreement for CICIG’s continued existence beyond 2019. CICIG is an IO that transited from an organization focused on the abstract objective defined as “ending impunity” to a more specific and identifiable one; “the investigation of corruption networks” is indicative of the modifications in the implementation of its mandate.1 The objective of this chapter is to shed light on that transition, understood as a process of strategic adjustment in its political and operative objectives, which has allowed CICIG to gain legitimacy both domestically (at least with certain political actors) and externally (with funders who expect more concrete results). Directing its mandate towards the investigation and persecution of corruption networks has allowed it to act with more certainty and develop “technical” skills in the creation of mechanisms and strategies to materialize its objectives. This has helped CICIG develop more clarity on both the measurables and deliverables of its mandate. This chapter offers an organizational analysis based on defining and understanding the organization’s hybrid nature as well as inherent challenges to its design, once it began its operations (most of which emerged from the obligation to both cultivate cooperation with domestic state actors while simultaneously investigating them). In contrast to studies that analyze the influence of external stakeholders in the design and evolution of CICIGs (such as the role of the United States and its interests in the Central American region), this chapter aims to provide a deeper understanding of the hybrid logic of the organization and its internal dynamics as descriptive elements of the transition, following the evolution from generic organizations (with the ambiguous mandate to eradicate impunity), to those specifically engaged in combating corruption.2 The chapter is divided into three sections. The first sheds light on the creation, design, and rationality of CICIG—its hybrid nature, its institutional autonomy, and its financial independence. The second identifies the critical points of its hybrid logic in practical action, specifically the uncertainty regarding the continuation of its mandate or threat of abandonment as well as the resistance and obstructionism on the part of powerful groups

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and individuals with whom it is forced to collaborate. The last section identifies CICIG’s transition into a reinterpretation of its original mandate, one specialized in persecuting corruption as a mechanism of response to continuous tensions with the Guatemalan state and the consequent organizational crises those tensions triggered. This chapter thus reaches a series of conclusions that leads to reflections regarding the ways in which a hybrid organization with functional authority was able to reinterpret and adjust its own mandate under contexts of uncertainty. It also contributes to the comprehension of challenges that a nation and the international community face when dealing with political corruption and state capture by criminal organized networks in post-­ conflict contexts.

The Birth of CICIG Shortly after the signing of peace agreements that ended one of the longest and most brutal civil armed conflicts in Latin America, Guatemala became the most violent and lawless states in the world (Matute and García 2007, 9). In the post conflict era that followed, Guatemala went from 2904 annual homicides (2000) to 6025 (2012), and from an index of 25.9 homicides per 100,000 inhabitants to 39.9 during the same period, reaching a rate of impunity of 98% (UNODC 2014). One of the most pernicious symptoms of this negative spiral was the survival and mutation of illegal organizations and clandestine security apparatuses (CIACS). These groups survived the armed conflicts due to the vacuums left by an institutionally weak and limited state, soon becoming powerful enough to violently battle with each other over the nation’s resources. Generally speaking, they were made up of ex-militaries, paramilitaries, former state intelligence personnel and public officials, and they soon merged with drug cartels, criminal networks, and even businesspersons with the purpose of capturing the political centers of the country. They quickly found the ability to generate and maintain an income and enrich themselves through illicit activities (such as kidnapping, extorsion, human trafficking, car theft and money laundry). They also infiltrated the country’s justice system, further securing their own impunity.3 This merging of criminal groups and government structures set the stage for what Dziedzic called “criminal power structures”, which, in a way, acted as the spoilers of the peacemaking and stabilization process of the country (Dziedzic 2016; Stedman 1997). According to Carlos Castresana

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Fernandez, the first CICIG commissioner, the CIACS effectively turned into violent and irreconcilable saboteurs with whom it was almost impossible to negotiate (Castresana 2016).4 The process by which these structures captured government institutions and transformed Guatemala into a “Corporate Mafia State” (AI 2002, 3; Ruhl 2011) is well documented and frequently cited by human rights defenders and the Guatemalan civil society, as well as international governmental and non-governmental organizations such as the United Nations (UN), the European Union (EU), Transparency International (TI), Amnesty International (AI), Human Rights Watch (HRW), Open Society (OS) and International Crisis Group (ICG), among others.5 At the time, these organizations’ reports simultaneously signaled that the government of Guatemala was guilty of the rise and spread of CIACS, since the peace agreements had assigned them the responsibility of identifying and dismantling them (a task they were unable to execute). The United Nations Verification Mission in Guatemala (MINUGUA), established to support the peacemaking process, was never really given a mandate or special faculties to achieve those objectives either. Its work was concentrated on observing and verifying the processes of demobilization and reintegration two contending forces: the Unidad Revolucionaria Nacional Guatemalteca (URNG) and the military (Castresana 2016, 53). The assassination of Monsignor Juan Gerardi mere hours after the publication of the interdiocesian project of historical memory revival Guatemala, nunca más (Guatemala, Never Again), developed by the United Nations Historical Clarification Commission (HCC), which identified many individuals responsible for the atrocities committed during the civil war, demonstrated that the Guatemalan justice system was completely incapable of bringing powerful figures to justice. Beyond the state’s lack of a discernible rule of law, it was also clear that the peacemaking and reconciliation process would likely be rendered obsolete without external intervention. For Guatemalan civil service societies, who were under constant intimidation from CIACS, it became increasingly clear that the solution was beyond the capabilities of their government, leading them to formally request direct intervention from the United Nations (WOLA 2015, 5). The country’s political elites also joined the call after, at least some of them, had recognized the potential risks of a federal government fully infiltrated by organized crime (Dudley 2016; Schünemann 2010). No state would easily recognize the direct participation of an external actor in its daily execution of government tasks, for it implies its own

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inability to operate effectively and solve domestic crises. There is no question that the mere contemplation of such an intervention is a desperate act—requiring long and complex negotiations leading up to a formal agreement (WOLA 2007). The original idea, proposed by a coalition of civil society organizations, revolved around an investigation mission with a six-month mandate to clarify the dynamics and relationships between criminal actors, the state, and their security forces. Their mandate would have entailed investigating human rights abuses and crimes committed during the conflict preparing public reports and documenting evidence for prosecution by national authorities. This would have matched the work of the Joint Group for Investigation of Politically Motivated Illegal Armed Groups in El Salvador (1992) (OSJI 2015). Confidentially, the United Nations pushed a more robust model with a five year mandate: the International Commission against Illegal Organizations and Clandestine Security Apparatuses (CICIACS), designed as an organization of investigation and prosecution independent from the Ministerio Público, which is a common structure in Latin America in charge of investigating and prosecuting crimes, and the National Civil Police (PNC) (CICIACS Agreement 2004). This instrument would have been especially designed to revert the problem of institution capture and manage the entire prosecutorial process, from handling tips to conducting the full investigation to passing down sentences. The presence of the United Nations in the country, its recent participation as negotiator and verifier of the peace process, and the many visits from human rights actors and transnational justice experts, lend it the authority and experience to consider the need for a powerful and independent body to fill this important role. The Guatemala Court of Constitutionality, however, passed down a consultative opinion in 2004 rejecting the proposal, with the argument that any independent prosecutorial powers should be reserved for the Ministerio Público (Corte de Constitucionalidad 2004). A second version—The International Commission against Impunity in Guatemala—offered a much more subdued model without independent prosecutorial powers in an attempt to clear the court viability (CICIG Agreement 2006). CICIG was approved in 2006 and ratified by the Guatemalan Congress in 2007, in a context of increasing violence and insecurity. Members of the new government under Oscar Berger identified that six of the 22 departments that divided the country were completely controlled by organized crime cartels, and that those groups were quickly

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integrating security personnel (as was evidenced by the February 2007 slayings of three Salvadoran parliamentarians in Guatemalan territory in by high ranking officials of the National Civil Police) (Schünemann 2010, 20). CICIG was given a mandate of two years (as opposed to five proposed for the CICIACS) with the possibility for renewal by petition of the Guatemalan government. They were also granted the powers of independent investigation without prosecutorial capabilities, where it would have to collaborate with (rather than substitute) the Ministerio Público. Thus, with a much more limited yet viable model (given the circumstances), CICIG became the first international organization with a focus on impunity and the dismantling of political corruption (Schünemann 2010, 15). Operationally, it was believed that CICIG would position itself as a buffer or intermediary between criminal groups and state institutions, allowing for the investigation and prosecution of powerful figures that had been considered untouchable until then (Olson 2016, 5). Their participation, however, became much more direct than expected. Formally, the mandate was defined in the following terms: support, strengthen, and assist the Guatemalan state institutions in identifying, investigating, prosecuting, and dismantling illegal security forces and clandestine bodies. This includes: • Identifying their activities, modalities, and operational structures, including links with state officials and funding sources; • Promoting investigation, criminal prosecution, and sanctioning of crimes committed by their members; and • Developing recommendations for the Guatemalan state for the adoption of public policies designed to eradicate them (CICIG Agreement 2006, Art. 1 a, b, c). CIACS were defined as groups that met the following criteria: (a) committed illegal actions to affect the full enjoyment and exercise of civil and political rights, and (b) were directly or indirectly linked with agents of the state or had the ability to generate impunity for their illicit actions (CICIG Agreement 2006, Art. 1d). CICIG was not thought of (as perhaps some civil society organizations hoped) as tribunals that would investigate and sanction past crimes, nor was it built as an organization primarily concerned with building capacities for combating administrative and political corruption. Its design from the outset had to do with reaching a complex condition of legitimacy and

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viability that would allow it to survive: holding the power of action within a sovereign nation where success would be understood as the capability to investigate and prosecute corrupt actors who may wield major power or political influence. Just as important as its design, CICIG would also need to sort, as it completed its own objectives, the vicissitudes and contingencies with which its mandate would inevitably have to face. Due to these separate conditions of its design and organization, it is interesting to study this experiment that presents many lessons in the matter of international instruments of intervention and the design of governance mechanisms of “limited state capacities” (Risse and Lehmkuhl 2006). Furthermore, as will be seen in the next sections, CICIG has a hybrid design and exceptional financial and functional autonomy (in theory), which allows it to isolate itself from domestic political interference and successfully act in contest of institution capture.

CICIG: Hybrid Design with Functional and Operational Autonomy The hybrid design of CICIG derives from a combination of both national and international actors, faculties, responsibilities, and resources to conduct government functions (Hudson and Taylor 2010; Maihold 2016, 4). As can be seen in Table 4.1, CICIG involves the state of Guatemala, the United Nations, and a community of funding nations to integrate a governance or authority scheme. The state of Guatemala cedes authority and faculty to CICIG for it to conduct independent investigations and engage in prosecutions with the Ministerio Público and other justice institutions. In addition, the international community offers CICIG enough economic resources to guarantee its financial independence and, in return, demands accountability on both processes and results. The United Nations brings a formal international mandate, legitimacy, and political backing to the table, guaranteeing the organization’s full operative autonomy. CICIG is thus integrated by prosecutors and international experts in criminal investigation, forensic analysis, and forensic accounting, who, thanks to funding by the international community, work with Guatemalan personnel applying local laws and procedures (since CICIG is ruled by substantive national laws and processes). Its external components rely on its ability to block all kinds of political interference and corruption from the institutions it directly collaborates with, as well as in the exercise of its

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Table 4.1  Hybridization: Actors with which the CICIG shares governance duties State of Guatemala

International cooperation

International organization

Delegates authority and independent powers of investigation with limited powers of prosecution subject to the buy in from the authority mentioned in the attached official suit. Unilaterally decides the expiration of the mandate.

Grant financial and political support resources from funding nations. Do not have control over the budgetary exercise, though they do demand clear and visible results.

Grant an international mandate derived from a political agreement with the Guatemalan government. Provide full operational autonomy in the selection of personnel, design of the intervention strategy and expenses.

Source: Elaborated by the author

substantive functions. Its national components bring an understanding of the political and cultural realities in which it is immersed, and, to a certain point, also provide it with a sense of appropriation that the population may perceive as a closer supportive relationship rather than one of domination. The hybrid design, as can be observed (Table 4.1), generates inevitable questionings regarding state sovereignty. This, because strictly speaking, Guatemala must grant a part of its domestic operations to an external actor to conduct certain government responsibilities. In return, the external actor must coordinate and build institutional capacity in tandem with domestic authorities (Krasner and Risse 2014; Maihold 2016; Matanock 2014). Despite these accountability structures, however, CICIG kept important levels of autonomy even with UN and funders. In fact, CICIG delivered several reports in order to keep them informed. However, these reports were not defined nor required formally. CICIG then reported to the UN Secretary General but there were no official mechanisms to sanction or contest such reports. This is one reason why CICIG maintained important degrees of financial, functional, and operational autonomy. In CICIG’s original signing agreement (article 2.2), it is clearly determined that both the government of Guatemala and the United Nations agreed to grant it all necessary assistance and institutional freedom possible, including full freedom of mobility, full access to information, full legal powers to enter into contracts with other states, full autonomy to establish its own work mechanisms, and full independence to manage its own budget (among many other stipulations). They also agreed that, if the funding

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nations hold resources or if the government of Guatemala fails to fully cooperate with its activities, blocks any action or does not adopt the legislative measures required to dismantle CIACS, the United Nations may revoke the agreed upon support (Art. 11). This ample political coordination agreement between the government and CICIG was reflected in a series of faculties and powers stipulated in the contract, which grant it fully functional and operational autonomy: 1. Access (without prior notice) to all facilities, establishments, and installations of the government (including civil, military, and penitentiary); 2. Freedom of gathering and interview with individuals or groups whose testimony is considered mandatory to the fulfillment of its own duties; 3. Access to official archives, databases, public registries, and any other type of civil or military document; 4. Denouncement of public officials and employees who in the exercise of their own roles have committed administrative infractions, especially those who may have blocked the proper functioning of the commission; 5. Ability to participate as an interested third party in the disciplinary administrative processes; 6. Ability to recommend prosecution through formal denouncements before the corresponding authorities as a “private prosecutor” to all cases inside its own jurisdiction6; 7. Technical assistance for competent institutions of the state in the investigation and prosecution of crimes committed by CIACS; 8. Implementation of agreements with the Public Ministry, Supreme Court, Human Rights Procurator, National Civil Police and any other state institution for the fulfillment of its own mandate; 9. Conduct any other action authorized by the Guatemalan legislature for the fulfillment of its functions (Art. 3). With respect to the United Nations, the link between both organizations was the CICIG Commissioner, designed and managed by the UN Secretary General. In the original agreement, the Commissioner had full authority to hire his/her own personnel, defining and redefining the internal hierarchy of the office, designing and implementing collaboration agreements with other state institutions, and fully controlling the

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organization’s budget. The commissioner’s only formal function identified in the original agreement was to provide public reports of CICIG’s activities to the United Nations and funding nations. Accordingly, CICIG did not benefit from regular resources from the UN budget; CICIG’s staff did not belong to the UN administrative service, and, as an organization, CICG was not a permanent structure within the UN system (WOLA 2015). In order to function, the organization requires an average amount between 15 and 20 million dollars annually, which are foreseen by voluntary contributions from funder nations and international organizations. The total amount of contributions received by CICIG between 2007 and 2008 totaled 167 million dollars, split between the following 17 funders according to their participation percentage: United States (26.6), Sweden (21.48), European Union (13.2), Canada (11.5), Netherlands (7.06), Spain (6.3), Norway (3.6), Finland (3 (0.3), Germany (2.8), Italy (1.5), Denmark (1.15), Switzerland (0.96), UNDP (0.45), United Kingdom (0.29), Ireland (0.13), Soros Foundation (0.05). Other countries such as Mexico, Uruguay, Peru, Colombia, and Chile (among others) contributed trained personnel on a temporary capacity basis to support the work of the organization (CICIG website 2019). Despite its innovative design, the broad collaboration agreement achieved with the Guatemalan government, and its full institutional and financial independence, in practice, CICIG faced constant situations of uncertainty and risk. For instance, it faced very short periods of time to show results: every two years, facing the threat of abandonment by one of its principals (either funders, the United Nations or the Guatemalan government), which forced it to demonstrate clear results in significantly reduced timelines. As shown below, CICIG also confronted important implementation challenges. For example, CICIG had to tackle constant obstructionism and blunt opposition (sometimes violent) from private or government actors that were affected by its work, necessitating strategies of confrontation without exceeding its mandate, involving the United Nations, or damaging its image with international funders. The handling of these complex dilemmas was not easy and on occasion, CICIG was mired in crisis situations. The critical events CICIG had to confront to guarantee its survival pushed CICIG to learn, innovate, and quickly adjust its own mandate (in other words, evaluate and redefine the means, capacities, and strategies that would make the organization effective). CICIG was able to reinterpret

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its mandate in such a way as allowing it to search for better strategies and tactics to achieve results, but not a radical transformation of its mandate, which would have jeopardized the agreement that was originally signed by the different counterparts. Moreover, it is not only a matter of reinterpreting the mandate. It is important to consider the managerial and strategic capabilities of the heads of the organization who had to adapt and design new formulas to guarantee the sustainability of the original objectives under an abstract mandate, thus making it hard to foresee the contingencies the organization had to face in practice. The following section will analyze those critical moments and turning points in the reinterpretation of CICIG’s mandate, or the ways in which the organization revised its capacities and limitations and evolved from an organization fighting against impunity to one specializing in the fight against corruption.

Threats and Challenges in the Implementation of the Mandate Due to its design, CICIG was obliged to renew its mandate every two years, and it did so in 2009, 2011, 2013, 2015, and 2017. Every time it underwent this process, the organization entered a time of uncertainty (and in some cases crisis). In 2009, during its first renovation, CICIG came under attack for its lack of visibility and limited results (OSJI 2016, 44). During that phase “many sectors pointed at CICIG for not succeeding at its own mandate, its bulky international bureaucracy, and for not presenting tangible results under the great climate of impunity that it operated in” (CICIG 2011; OSJI 2016, 44). In 2013, CICIG confronted strong obstructionism from the judicial branch, and its permanence was conditioned on the transferring of responsibilities and eventual exit. Numerous high impact cases opened by CICIG and multiple legislative reform packages were frozen in the courts, while the organization’s officials were frequent subjects of intimidation, violence and smear campaigns. The organization was accused of pushing the boundaries in the execution of its functions, deviating from its mandate, and generating increasing instability. Towards 2015, when the process of transferring responsibility to CICIG was coming to an end, the first two Commissioners (Carlos Castresana and Francisco Dall’Anese), had resigned, and most of the conversation revolved around the definitive end to the organization. How was

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it that CICIG overcame these contexts of acute political turbulence? What did CICIG do to prevent abandonment and overcome obstructionism? How did it adjust its own mandate and strategies of action? Threat of Abandonment CICIG has often confronted strong criticism and even calls for leaving the country, either because governmental authorities considered its work insufficient (as was the case in 2009) or because they deemed it excessive (as was argued in 2011 and 2013). Regardless, the need to renovate its mandate every two years forced CICIG to present results in very short amounts of time while maintaining visibility, legitimacy, and an image of pertinence. In line with the principal-agent theory, the biannual renovation of its mandate was a product of the control mechanisms established by the principals to supervise and direct CICIG. In practice, these controls generated situations of uncertainty and tension for CICIG, since its existence was permanently conditioned, coupled with the threat of abandonment at every turn. The responses enacted by CICIG to manage these risks were varied and depended both on the context and the predominant leadership. The mandate renovation in 2009, for example, was approved at the same time as the organization was still processing its own dwelling and installation of its headquarters. Midway through the first year of operations, CICIG was reaching 70% in personnel capacity (199 officials from 24 countries) and was only beginning to develop its own analysis of the institutional and procedural deficits that could be addressed (CICIG 2009). It is no surprise, therefore, that CICIG was not very visible at that time, and did not offer any tangible results. By the time renovation was requested, however, the organization had acquired a significant role, and was very much resting on the backing of the government at the time. While in 2008, CICIG participated in 11 cases of high impact investigations (with two as the “private prosecutor”), in 2009 CICIG completed 29 cases of high impact investigations and 11 cases as the private prosecutor (CICIG 2010). CICIG also managed to push the approval of diverse legal instruments, such as the Guns and Ammunitions Law, the Law Against Organized Crime, the Law for the Strengthening of Penal Prosecution, and the Law for Penal Appeals in High Risk Processes. CICIG attained this first successful mandate renewal because, under the leadership of Carlos Castresana (2007–2010), it assumed the

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investigation into a case that was marginally related to its mandate under the government’s own petition: the murder of Guatemalan lawyer Rodrigo Rosenberg (in which the Guatemalan president Álvaro Colom and first lady Sandra Torres were heavily implicated). The quick and efficient resolution CICIG was able to bring about immediately positioned it as a credible and effective organization capable of acting in full neutrality (and bringing political stability to the country). Consequently, CICIG received the full support of both the president and congress for the renewal of its mandate, expanding its participation as an investigatory arm, and promoter of additional packages of legislative reform (WOLA 2015). The ways in which the organization handled its mandate renewal in 2015, when an absolute closure was a real possibility and CICIG lacked a cohesive leadership team following the renunciation of two of its first commissioners, was entirely different. In this case, as will be seen in the following sections, CICIG initiated its revision of objectives and capacities, redefined its intervention theory, adjusted working methodologies, and through the integration of a successful case (known as La Línea), repositioned itself as an internationally renowned model organization against corruption. This process was clear evidence of the organization’s autonomy, as it was self-initiated, conducted, and successfully completed. Resistance and Obstructionism The resignation of the two first commissioners was a product of resistance, obstructionism, and in many cases outright opposition that CICIG faced from many national authorities with whom it had to collaborate with. As a quick reminder, the organization had two completely separate arms and processes for the investigation and prosecution mandates (maintaining full autonomy in the first and fulfilling a very dependent advisory role in the second). This meant that, in order to close certain cases, CICIG had the obligation to actively collaborate with the Ministerio Público, the Attorney General, the Justice System, and the state Police, among many other local actors. Although CICIG had access to a contingency of international experts isolated from domestic political dynamics, it often had to work with prosecutors, judges, and Guatemalan police force. Attaining meaningful direct collaboration with the aforementioned actors was not an easy task. After the success obtained with the Rosenberg case,7 Commissioner Carlos Castresana Ruiz (2007–2010) confronted growing opposition from judges and magistrates attacking CICIS’s

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intervention in the nominating processes for the Supreme, Appellate and Constitutional courts, where they contended that the principal nucleus of state capture laid undetected. As CICIG and other civil society organizations that participated in a substantive revision of candidate files argued, these nominations were plagued with political interference and under-the-­ table deal making, where criminal relationships were more than obvious. It was not long before Castresana found himself in another showdown with the executive branch over the naming of a trustworthy Attorney General in which he could trust. This confrontation led him to resign in June 2010, right in the center of a series of personal attacks (WOLA 2015) meant to discredit him. In his resignation, Castresana stated that the Guatemalan government was not meeting its own obligations under the agreement, lacked the political will to push through important legislations in the battle against impunity, and was refusing to assign the necessary funds to build maximum security prisons, high impact tribunals, and properly trained prosecutors to strengthen the Ministerio Público (WOLA 2015). During the tenure of Francisco Francisco Dall’Anese Ruíz, the second commissioner (2010–2013), CICIG’s relationship with the Ministerio Público was significantly strengthened owing to the naming of prosecutor Claudia Paz y Paz, who was committed to transforming the rule of law as well as establishing a special unit to support the CICIG (Special Prosecutor’s Office for CICIG or UEFAC, later known as the Special Attorney’s Unit against Impunity and Corruption in Honduras or UFECIC). Paz y Paz also established high impact tribunals and a special police force. These organizations would become key in the work of the CICIG and would facilitate the exchange of knowledge and insight between international experts, prosecutors, and national investigators. Despite these important steps forward, the continued resistance from judges and other public officials further complicated CICIG’s ability to meet its objectives. In 2013, CICIG warned that since 2009, 70% of its recommendations in matters of legislative reforms had not been enacted, 40% of the investigated cases it brought to prosecutors were delayed in the courts (with several confronting multi-year delays), few convictions were being reached, and many of its requests to participate as a “private prosecutor” had been denied (CICIG 2013, 40–41). The obstructionism from judges and prosecutors escalated throughout this period, reaching a boiling point towards 2013, when the report titled “Judges Against Impunity” (Los Jueces de la Impunidad) presented an

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investigation into cases of high impact in which members of the traditional political elite had been involved (the Vielman case and the persecution of militaries accused of genocide, especially dictator Efraín Ríos Montt) (Dudley 2016). This report analyzed nearly twenty separate judge and magistrate decisions in which, in the words of Franciso Dall’Anese, “favored criminal networks and contradicted several laws had been taken” (CICIG 2012a). CICIG clearly identified cases where “judges celebrated private audiences with the suspects and their defense teams, granting them freedom without passing on clear information to the prosecutors or CICIG on the legal reasoning for their decisions. These where cases where “judges revoked pre-trial detention and granted substantive measures to the accused without any change in the initial circumstances, the proper application of the penal code was fully omitted, and the judges themselves rejected the intervention of CICIG as private prosecutors (making an arbitrary interpretation of the definition of CIACS and ignoring the clauses of the agreement between the government and the CICIG)” (CICIG 2012b, 12). CICIG understood that an important portion of the judiciary had been fully infiltrated by CIACS, which is why both identifying them and charging them was perfectly within the confines of its mandate. The traditional political elite, however, be they former public officials, judges, or magistrates, transformed that treat into a heated accusation that CICIG was overstepping its mandate and carefully delineated functions. They went so far as to argue that the investigation of judges should not be considered a feature of CICIG’s faculties within the confines of the original agreement. These elites used the media to question CICIG’s faculties to intervene in judiciary decisions and questioned the candidacies of judges offered by CICIG. Former president Eduardo Stain (who had originally supported the creation of CICIG) brought the confrontation to the United Nations, soliciting greater supervision and control of the organization (while the Association of Guatemalan Judges and Magistrates argued, in tandem, for the demotion of commissioner Dall’Anese) (WOLA 2015). The open confrontation between CICIG and Guatemalan authorities lead to the ousting of Dall’Anese (as agreed upon by the United Nations). The decision seemed to have been leaked to the media three months in advance, which jeopardized the orderly transition and commissioner substitution process (OSJI 2016, 70). At the arrival of the third commissioner, Iván Velásquez Gómez (October 2013), CICIG suffered from lack of leadership, and the

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Guatemalan government considered it an inefficient and costly exercise that should prepare itself to return its functions to the state authorities in 2015. At the time, many media outlets heavily criticized CICIG’s inability to prosecute the ex-dictator Efraín Ríos Montt (accused of genocide) and the ex-president Alfonso Portillo (accused of misappropriation of public funds and illicit enrichment). As a consequence, CICIG initiated an internal revision of processes and working mechanisms, leading to the development of a new work plan. This new plan clearly identified the economic and political criminal networks as the main subjects of their intervention (or as the constructivist-bureaucratic theory would argue, reinterpreted the problem and developed new conceptualizations towards becoming an anticorruption organization).

CICIG as a Hybrid Anticorruption Agency CICIG was not conceived as an anticorruption organization in the strictest sense, and its transition from addressing impunity to corruption as mandate was the product of a series of decisions taken by the organization in order to execute its complex hybrid design. This required new working hypotheses and new operational concepts. The work plan (2013–2015) was the result of an internal revision process of CICIG, triggered by the arrival of new Commissioner Velásquez in October of 2013. It marked the beginning of a new strategic approach to the organization’s mandate, specifically signaling the types of cases it would investigate and the process it would follow to conduct those investigations. With the adoption of a new working hypothesis targeting economic causes of impunity, new investigation cases in matters of political and administrative corruption were prioritized, and a new operational category was adopted (defined as networks of illicit economic and political networks or IEPNs) that refocused the organization’s efforts to a target much more visible and identifiable than CIACS (Zamudio 2018). The case known as “La Línea” (2015) would be the first major accomplishment under this strategic repositioning and would serve not only to overcome the state of crisis in which CICIG found itself in and extend its mandate one more time (from 2015 to 2017), but also to position it as a global example in the fight against corruption. The case was paradigmatic, for it demonstrated the ways in which CIACS operated within the state, building parallel structures of power that took complete control of the state’s revenue collecting agencies and generated millionaire profits for all

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partners at various scales (including the sitting president Otto Pérez Molina and Vice President Roxanna Baldetti). The “La Línea” case forced the resignation of some of the highest figures in the government and demonstrated, as commissioner Velásquez said, that “no one was untouchable”. This guaranteed significantly increased legitimacy and support for CIACS from civil society. With the conceptualization of illicit economic and political networks (IEPN), the organization was able to better define the subject of its interventions. The networks were defined as “the confluence or grouping of individuals who self-organize, cooperate, communicate, and inform one another and possess common interests or finalities for the realization of activities of political, economic, or mixed character that are principally illicit (although collaterally illicit)” (CICIG 2016, 13). Also, “these economic and political activities are conducted by agents (natural or legal persons) with some degree of informality and possess a series of characteristics that position them inside informal and/or illegal networks which seek (and many times succeed) to escape detection by government agencies that enforce the proper following of the law” (CICIG 2016, 13). Instead of investigating individual cases characterized by impunity in human rights violations or violent acts, CICIG visualized complex and transversal structures of political corruption as well as structures of economic and political links between organized crime and both the public and business sectors. Through the use of criminal investigation techniques, with experts in money laundry and financial analysis, many patterns of behavior were identified (which were replicated in multiple instances and led to the development of a working methodology that specialized in identifying cases of political and administrative corruption). By focusing the work of CICIG on the economic frameworks of impunity, a new hypothesis of political capture was adopted de facto (as sustained by Commissioner Velásquez). CICIG was created to prevent or revert political capture through the support of the Guatemalan government in identifying and disarticulating CIACS. The issue, however, was that both the conceptualization of CIACS and the conceptualization of political capture were very ambiguous, and it was the organization itself that simultaneously interpreted them and made them operative. For Commissioner Carlos Castresana, political capture was, for example, in the naming of judges and magistrates, which is why he invested time and resources in “cleaning” the nomination processes, separating them from irregular procedures of potential bribery.

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For Commissioner Velásquez, the process of capture was found in illegal political and campaign financing schemes. According to the tenth activities report of the organization, “bribery, fraud, graft, embezzlement, influence peddling and collusion, among many other illicit practices, are more frequently linked with the criminal networks embedded in the Guatemalan state, whose members have risen to key posts inside public administration with the objective of interfering in governance models and reorient them towards the attainment of particular interests” (CICIG 2018, 17).8 In his thematic report regarding illicit financing of electoral campaigns, Velásquez brings particular attention to the importance of cleaning those processes as a key step to preventing the capture of political institutions. Of course, corruption was not a foreign subject to CICIG. It was simply not the most important or the most prioritized. During its first year of operations, from 11 investigated cases, five were related to cases of corruption, and in year two, it was eight out of 12. Towards 2011, the organization began pushing anticorruption reform packages and dedicating increasingly more attention to the subject. Finally, in 2013, corruption became a priority for the organization’s investigative operations (CICIG 2012c, 7), recognized as the “principal core of the relationships between public authorities and individuals with the effect of delegitimizing the essential activities of the state” (CICIG 2018, 17). Between 2016 and 2017, of 16 achieved sentences, 12 corresponded to administrative corruption, one to political corruption, one to judicial corruption, and 2 to high impact extorsion and homicide (see Table 4.2).9 Of the most investigated cases of corruption before 2013 (Portillo, Defensa Nacional, Militares, Caso Fraijanes II, RENAP, Maskana, Alcalde de Antigua y ASODEAGUA),10 the most relevant was that of Alfonso Portillo (former president of Guatemala), who was accused of illicit extraction of public funds and modifying budget allocations totaling 15 million dollars. From this case, many more linked to the National Defense Ministry and the military sector were derived, due to the fact that Portillo had colluded with both the military and the Ministry of Public Finances (Manuel Hiaram Maza) to cover up the financial transactions under defense-related budget line items. Other corruption cases were linked to the hiring of fraudulent state contractors, tax fraud, misappropriation of funds, illicit association, scamming, money laundry and similar activities where a position of authority was taken advantage of to award contracts, overvalue public works, emit falsified documents or hire family members (among others). As can be observed in Table 4.3, however, the investigatory focus of CICIG at the time did not prioritize the persecution of corruption. Many

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Table 4.2  Successful Sentences achieved in collaboration with CICIG (2007–2018) Achieved sentences

Cases

Administrative corruption

Municipalities (Huhuetenango, Tonocapan, Chicamán, Antigua, Puerto San José, Quetzaltenango); General Directive for Migration and the National Registry of Persons (Dirección General de Migración y Registro Nacional de Personas); Guatemalan Institute of Social Security (Instituto Guatemalteco de Seguridad Social); Ministry for the Environment and Natural Resources (Ministerio de Ambiente y Recursos Naturales); Ministry of Government (Ministerio de Gobernación); Penitentiary System; Port Authority; Financial Markets Judicial corruption Magistrate Érick Santiago de León Political corruption Congress: Mario Israel Rivera Cabrera Homicide and Councilmen of Xela, journalist assassinations Extorsion Source: Compiled by the author based on CICIG 2018. Décimo primer Anual Informe de Labores

Table 4.3  Criminal categories and cases investigated by CICIG before 2013 Criminal categories

Cases

Extrajudicial executions (criminality in MG and PNC, social cleaning of problematic prisoners or criminals without a judicial process). Extortion y murder (gangs and Maras) Individuals with illegal adoption purposes

1. Cleopatra, 2. Matus, 3. Pavón, 4. Río Hondo Zacapa, 5. La Cueva, 6. Infiernito, 7. Mario Roberto Iboy, 8. Tripas.

Drug trafficking Agrarian and social conflicts Illicit human and merchandise trafficking Corruption

Diverse cases 1. Primavera, 2. Moyos, 3. Rosalinda Rivera, 4. Red de adopciones, 5. Pontaza 1. Vidal Requena, 2. Amatitlán, 3. Montes, 4. Fusión, 5. Secuestros, 6. Rubén Rosales 1. Polochic, 2. Las Nubes, 3. El Tigre, 4. Víctor Gálvez, 5. Nueva Vida. 1. Gasofa, 2. Sto. Tomas de Castilla, 3. Furgones, 4. Capitán, 5. Fidel Pacheco 1. Portillo, 2. RENAP, 3. Maskana, 4. Fraijanes II, 5. Alcalde, 6. ASODEAGUA, 7. Militares, 8. Defensa Nacional.

Source: Compiled by the author based on CICIG 2015 Octavo Informe Anual de Labores (2013–2014)

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of the investigated cases were related to criminality and violence, or the violation or impediment of the exercise of some right under the law. The organization’s work was oriented towards the fight against impunity, defined as the “inexistence of fact or right of penal, administrative, disciplinary or civil responsibility for the responsible of certain actions, eluding investigation or conviction, all conducive to the weakening of the rule of law, impeding the state from exercising its duty to guarantee citizens who are victims of criminal acts from the full exercise of justice with the consequence of an erosion of faith in the democratic institutions of the country” (CICIG Agreement 2006, 2). Though it is recognized that instances of corruption are complicated to investigate due to the fact that there is no “crime scene” and officials have quick access to manipulating or destroying evidence (not to mention pressure witnesses, investigators or even judges) (CICIG 2013, 17), CICIG began to prioritize them as investigative objectives in 2013 (see Table 4.4). Thus, in the last report it was demonstrated that CICIG had consulted on more than 100 investigations, identifying more than 60 criminal structures, processing more than 1200 persons; achieving more than 310 sentences, and spearheading more than 34 legal reforms (CICIG 2018, 7). From the establishment of CICIG, the homicide rate has declined by 5% Table 4.4  Criminal categories and cases investigated by CICIG after 2013 Criminal categories Cases Contraband and customs defraudment Administrative corruption

Illicit electoral financing Judicial corruption Drug trafficking and resource laundry

La Línea/Cooptación de Estado, Terminal de Contenedores Quetzal, La Cooperacha y Crédito Fiscal Networks of Passport falsification, corruption in the penitentiary system, IGSS, phantom seats in congress, PNC fraud, influence peddling in the Social Development Ministry, networks and negotiators in health, networks and influence peddling between public officials (Z Gas, Juez Patán, Jaguar Energy). Thematic report Pre-trial of four judges and a magistrate High-power murder structures (Mendoza Matta, Mazatenango journalists, forced disappearance)

Source: Compiled by the author based on CICIG 2018. Décimo primer Anual Informe de Labores

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and the number of resolved murders went from 7% in 2006 to 28% in 2013 (CICIG 2018). Despite the achieved successes, CICIG is once again in a state of crisis, and all signs point to an end to their mandate in the near future: “CICIG staff has been subject to threats and defamations, the commission has confronted direct actions designed to weaken its functioning and organic structure, and its allies in the war against corruption have been on the receiving end of constant pressures and threats.” (CICIG 2018, 9). Since October 2018, Commissioner Velázquez has left the country and been barred from returning. The current president of Guatemala (Morales) has said that CICIG’s mandate will not be renewed because the organization constantly generates political instability. In the framework of the June 2019 presidential elections, the former Attorney General Thelma Aldana, who had shown willingness to collaborate with CICIG, was excluded from the ballot and none of the other presidential candidates (Sandra Torres and Alejandro Guiammattei) have signaled openness to renewing the mandate in August 2019. In September 2019, the government of Guatemala officially announced its refusal to renew the agreement with the UN.

Lessons Gained from CICIG’s Organizational Challenges Without a shadow of a doubt, CICIG has become, as Schünemann argued, an authentic “icebreaker”, capable of destroying heavily guarded structures of corruption and criminality (Schünemann 2010, 27). CICIG could be seen as a success in at least one sense: an organization with technical capacities to investigate and prosecute corrupt actors and bring them to justice, as never seen before in Guatemala. Its technical success not necessarily meant political success. CICIG’s design has not saved it from the threat of abandonment and political resistance that have become a feature of its very existence. A great lesson to be gained from CICIG is that its technical success also brought with it the seed of its own failure and disappearance (a new reality that had not yet been observed). Organizations, in general, are abandoned because they are not able to fulfill their objectives or because their original purpose is no longer valid. In contrast, CICIG is a greatly successful organization in terms of showing that technical and political capacities are essential to reduce and control systemic corruption. However, the problem is so big that despite these well-known capabilities of CICIG, political

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corruption continues to be a serious problem in Guatemala. Moreover, CICIG was an ambitious and problematic political solution: the original problem of affecting the sovereignty of a country is a big challenge. Persistent resistance from national authorities has been reflected in many different forms: political actors demanding results in unreasonably limited timelines, obstructing effective collaboration with agencies, paralyzing the proposed legislative reforms, constantly questioning if it has overstepped its mandate, accusing it of partiality or outright intervention on the country’s sovereignty, among others. In the end, the stronger the organization is, the more dangerous it becomes for people and groups who engage in acts of corruption. An interesting second lesson is that CICIG was not born as a hybrid anticorruption organization: it became that owing to its capabilities for adjusting and adapting to the specific context and conjunctures it faced. From its conception and design as an external intervention instrument to combat impunity and strengthen the rule of law, CICIG became an organization focalized on battling political and administrative corruption. This transition occurred due to the fact that, as an organization, it responded to the conditions and restrictions of its environment without following the instructions of the funding nations or the United Nations. CICIG sought to increase its own efficiency, pertinence and legitimacy by focalizing its mandate to identifiable transversal corruption networks. Thus, the more technical and restricted the organization’s response became, the more concrete results it was able to achieve. Finally, an important lesson is that CICIG faced, from the very first day, challenges for which it was never designed. Despite its high level of financial and operational autonomy, it is evident that the internal political situation of the country affected the CICIG and its performance. It is also logical that CICIG became very quickly a political actor in the Guatemalan political system. Its design aimed to isolate in certain way the organization from these political impacts. However, in practice, it is impossible to assume that such isolation might be absolute. CICIG may have attempted to generate counterweights so the national institutions in charge of the fight against corruption could properly investigate and prosecute without being harassed or infiltrated, but without the ability to institutionalize these they may actually have complicated political balances.

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Notes 1. Jimmy Morales is being investigated for illicit electoral financing (for over one million dollars), while his brother has been accused of fraud and money laundering. This situation led them to kick out the CICIG from the country and impede the reentry of Commissioner Iván Velásquez since September 2018. The former prosecutor Thelma Aldana, a CICIG collaborator and expected candidate for the June 2019 presidential elections is also outside of the country, boycotted by the Executive (García 2018; Carasik 2019). 2. The Open Society Justice Initiative (2016) presents a careful analysis regarding the ways in which the organization strategically transformed itself until fully adopting an anticorruption agenda. Their central argument is that the difficulty to operationalize their mandate was due to the fact that no one (referring to funders, the US government, the UN and the Guatemalan government) had clarity on what they wanted the organization to achieve. Thus, commissioners, without a clear plan of action, had to adjust to and take advantage of the opportunities of the context. 3. For a detailed analysis of CIACS, see Briscoe and Rodríguez (2010), Castresana (2016), Gavigan (2009), Gutiérrez (2016) and Peacock and Beltrán (2003). 4. The CICIG has had three commissioners: the lawyer and Spanish prosecutor Carlos Castresana Fernández (2007–2010), the Costa Rican Attorney General Francisco Dall’Anese Ruíz (2010–2013), and the prosecutor and Colombian diplomat Ivan Velásquez Gomez (2013–present). 5. See ICG (2010, 2016), WOLA (2007, 2015), OSJI (2016). 6. A private prosecutor is involved from a process standpoint, with the ability to exert penal action, solicit proof, or require decisions from tribunals. This faculty is not autonomous but is subordinated and depends on the consent of the Public Ministry and the approval of the Judicial Branch. WOLA (2015, 16). 7. In this case, CICIG was called to help to resolve, in a non-politized and credible manner, the assumed assassination of an important lawyer who accused the then president of the country of any harm he would suffer. Surprisingly, CICIG resolved the lawyer had committed suicide, gaining important levels of legitimacy among state and civil society actors, due to the clear technical capacities the organization displayed. 8. Since 2016, the CICIG has supported the Supreme Electoral Tribunal (Spanish acronym: TSE) in the defining of fiscalization models for electoral financing, instruments, protocols, and the implementation of a new Control and Fiscalization Special Unit of the financing of parties and better controls for the electoral process 2019 (López 2019).

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9. Judicial corruption continues to be a relevant topic for CICIG, but is currently addressed through an integral reform and informational platform named Integrated Justice System (Spanish acronym: SIJ), “oriented towards identifying the ideal mechanisms for progressively reducing national impunity through the measurement and improvement of efficiency and effectiveness in justice, generating data and rational arguments that allow for an interinstitutional-sectorial decision-making process with the horizon of articulating the planning and assigning of resources” (CICIG 2018, 34). 10. For a detailed analysis of case studies, see CICIG (2013).

References AI (Amnesty International). 2002. El Legado mortal de Guatemala: el pasado impune y las nuevas violaciones a los derechos humanos. https://www.amnesty. org/download/Documents/112000/amr340012002es.pdf. Briscoe, Ivan, and Martín Rodríguez Pellecer. 2010. Criminal Networks and Institutional Reform in Guatemala. The Hague: Institute of International Relations Clingendael. Carasik, Lauren. 2019. Guatemala’s Slow-Motion Coup Rolls Onward. Foreign Policy. January 26. https://foreignpolicy.com/2019/01/26/guatemalas-slowmotion-coup-rolls-onward/. Castresana, Carlos. 2016. Guatemala, Illegal Entities and the Clandestine Security Apparatus. In Criminalized Power Structures: The Overlooked Enemies of Peace, ed. Michael Dziedzic, 53–81. London: Rowman and Littlefield. CCG (Corte de Constitucionalidad de Guatemala). 2004. Opinión Consultiva, expediente No. 1250–2004. CICIACS (Comisión para la Investigación de Grupos Ilegales y Aparatos Clandestinos de Seguridad en Guatemala). 2004. Agreement between the United Nations and the Government of Guatemala for the Establishment of a Commission for the Investigation of Illegal Groups and Clandestine Security Organizations in Guatemala, January 7. CICIG (Comisión Internacional contra la Impunidad en Guatemala). 2006. Agreement between the United Nations and the State of Guatemala on the Establishment of an International Commission Against Impunity in Guatemala. December 12. ———. 2008. Primer Informe Anual de Labores, Guatemala de Asunción. ———. 2009. Segundo Informe Anual de Labores, Guatemala de la Asunción. ———. 2010. Tercer Informe Anual de Labores, Guatemala de la Asunción. ———. 2011. Cuarto Informe Anual de Labores, Guatemala de la Asunción.

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———. 2012a. Los jueces de la impunidad, Guatemala de la Asunción. November 28. http://kpbs.media.clients.ellingtoncms.com/news/documents/2012/12/07/COM-093-20121129-DOC01-ES.pdf. ———. 2012b. Cuarto Informe Anual de Labores (2010–2011). ———. 2012c. Quinto Informe Anual de Labores, Guatemala de la Asunción. ———. 2013. Sexto Informe Anual de Labores, Guatemala de la Asunción. ———. 2014. Séptimo Informe Anual de Labores, Guatemala de la Asunción. ———. 2015. Octavo Informe Anual de Labores, Guatemala de la Asunción. ———. 2016. Noveno Informe Anual de Labores, Guatemala de la Asunción. ———. 2017. Décimo Informe Anual de la Labores, Guatemala de la Asunción. ———. 2018. Décimo primer Informe Anual de Labores, Guatemala de la Asunción. CICIG website www.cicig.org. Dudley, Steven. 2016. Elites y crimen organizado en Guatemala: la CICIG. InSight Crime, 1°, septiembre. https://es.insightcrime.org/investigaciones/elites-ycrimen-organizado-en-guatemala-la-cicig/. Dziedzic, Michael. 2016. Criminalized Power Structures: The Ovelooked Enemies of Peace. Boulder: Rowman and Littlefield. García, Jacobo. 2018. Guatemala vive un golpe de Estado técnico. Entrevista a Thelma Aldana. El País. septiembre 26. https://elpais.com/internacional/2018/09/27/america/1538001436_141403.html. Gavigan, Patrick. 2009. Organized Crime, Illicit Power Structures and Guatemala’s Threatened Peace Process. International Peacekeeping 16 (1): 62–76. Gutiérrez, Edgar. 2016. La CICIG: Un diseño nacional y una aplicación internacional. Política Internacional 1 (1): 26–36. Hudson, Andrew, and Alexandra Taylor. 2010. The International Commission against Impunity in Guatemala: A New Model for International Criminal Justice Mechanism. Journal of International Criminal Justice 8 (1): 53–74. ICG (International Crisis Group). 2010. Guatemala Squeezed between Crime and Impunity. Latin America and Caribbean Report 33. June 22. https://www. crisisgroup.org/latin-america-caribbean/central-america/guatemala/ guatemala-squeezed-between-crime-and-impunity. ———. 2016. ¿De bastón a catalizador?: la Comisión Internacional contra la Impunidad en Guatemala. Informe sobre América Latina 56. enero 29. https:// www.crisisgroup.org/es/latin-america-caribbean/central-america/guatemala/crutch-catalyst-international-commission-against-impunity-guatemala. Krasner, Stephen, and Thomas Risse. 2014. External Actors, State-Building, and Service Provision in Areas of Limited Statehood: Introduction. Governance 27 (4): 545–567. López, Ismael. 2019. Polariza elecciones el legado de la CICIG. Omnia, abril 21. http://www.omnia.com.mx/noticia/105338.

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Maihold, Günther. 2016. Intervention by Invitation? Shared Sovereignty in the Fight against Impunity in Guatemala. European Review of Latin American and Caribbean Studies 101 (101): 5–31. Matanock, Aila. 2014. Governance Delegation Agreements: Shared Sovereignty as a Substitute for Limited Statehood. Governance 27 (4): 589–612. Matute, Arturo, and Iván García. 2007. Informe estadístico de la violencia en Guatemala. Programa de Seguridad Ciudadana y Prevención de la violencia del PNUD en Guatemala, Guatemala. https://www.who.int/violence_injury_ prevention/violence/national_activities/informe_estadistico_violencia_guatemala.pdf. Olson, Eric. 2016. A Glimmer of Hope in Central America. Wilson Center Latin America Program. https://www.wilsoncenter.org/article/glimmer-hopecentral-america. OSJI (Open Society Justice Initiative). 2015. Against the Odds. CICIG in Guatemala. New York: Open Society Foundation. ———. 2016. Against the Odds. CICIG in Guatemala. New York: Open Society Foundation. Peacock, Susan, and Adriana Beltrán. 2003. Hidden Powers in Post-Conflict Guatemala. Illegal Armed Groups in Post-Conflict Guatemala and the Forces Behind Them. Washington, DC: Washington Office for Latin America. Risse, Thomas, and Ursula Lehmkuhl. 2006. Governance in Areas of Limited Statehood- New Models of Governance? Governance Working Paper Series, 1. Berlin: SFB Governance Working Paper Series. Ruhl, Marc. 2011. Guatemala: A Failing State? In Western Hemisphere Security Analysis Center. Miami, FL: Applied Research Center at Florida International University. Schünemann, Julia. 2010. Looking the Monster in the Face: The International Commission against Impunity in Guatemala and the Rule of Law-builders Contract. In Initiative for Peacebuilding Security Cluster. Madrid: Fundación para las Relaciones Internacionales y el Diálogo Exterior. Stedman, Stephen. 1997. Spoiler Problems in Peace Processes. International Security 22 (2): 5–53. UNODC (United Nations Office on Drugs and Crime). 2014. Global Study on Homicide. https://www.unodc.org/documents/data-and-analysis/statistics/ GSH2013/2014_GLOBAL_HOMICIDE_BOOK_web.pdf. WOLA (Wash Office on Latin America). 2007. A Brief Background on the UN Commission Against Impunity in Guatemala, April 25. Washington, DC: WOLA. https://www.wola.org/analysis/a-brief-background-on-the-uncommission-against-impunity-in-guatemala/. ———. 2015. La CICIG: Un instrumento innovador contra redes criminales y para el fortalecimiento del Estado de Derecho. Informe 3, marzo. Washington, DC: WOLA. https://www.wola.org/sites/default/files/CICIG%203.25.pdf. Zamudio, Laura. 2018. La Comisión Internacional contra la impunidad en Guatemala. Una organización auto-dirigida. Foro Internacional 53 (3): 494–535.

CHAPTER 5

The Support Mission Against Corruption and Impunity in Honduras (MACCIH)

Abstract  The Support Mission Against Corruption and Impunity in Honduras (Spanish acronym: MACCIH) is a HACA led and directed by the OAS. Its objective is to support and strengthen national institutions in charge of investigation and prosecution of acts of corruption. MACCIH works with a limited intervention model centered on the functions of consulting, supervision, and certification without formal powers of investigation and prosecution or a significant margin of operational autonomy. Despite all, in its mere three years of history, MACCIH has achieved many successes, overcoming the limitations of its mandate and investigating acts of political corruption at the highest levels. The chapter identifies the ways in which the organization has succeeded at adapting its mandate and overcoming institutional limitations. Keywords  Anticorruption Agency • Organizational autonomy • Institutional strengthening • Active collaboration • Honduras The Support Mission Against Corruption and Impunity in Honduras (Spanish acronym, MACCIH), is a hybrid organization, a new kind of international instrument headed by the Organization of American States (OAS) with the intention of fighting political corruption and state capture in this country. It is another one of the novel instruments of international © The Author(s) 2020 L. Zamudio-González, International Intervention Instruments against Corruption in Central America, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-40878-7_5

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intervention that share legal authority and operational capacity to dismantle networks of corruption at the national level. In practice, MACCIH adopted a limited model of intervention conceived in terms of “active support” (consulting, supervision, certification) of the national institutions responsible for investigation and prosecution. In contrast with the CICIG, it is not granted independent investigation capacity, though it has found a way to actively participate in such process through the integration of work teams with the Ministerio Público and other partners, and by the selection and prioritization of cases on the docket. Clearly, MACCIH and CICIG are different. This fact spurs reflections on their origins since, to a certain extent, the UN paved the way with CICIG through a model that was beginning to attain certain degrees of success. Why was the CICIG model not directly followed in Honduras? It turned out that in Honduras, it seemed more appropriate to build an organization with stronger ties to national institutions in order to avoid outright attacks that CICIG suffered, as discussed in the previous chapter. It is evident that the design of MACCIH came after close observation of CICIG, cautiously moving into a different direction with the objective of establishing a similar instrument, but in some senses more limited and bounded. To begin with, MACCIH is inserted into the so-called national anticorruption system in Honduras, becoming one of several parts in the fight against corruption. Once this particular setting of the organization is sustained formally, MACCIH maintains the features of a hybrid organization, an international organization with the faculty to legally operate within the national institutional system, engaging in collaboration, certification and technical consultations with all government bodies in charge of combatting corruption, without exercising any independent action (WOLA 2015).1 In this way, unlike CICIG, MACCIH was not conceived as the only anticorruption body with broad investigatory faculties. Instead, its operational functions of investigation and criminal prosecution were adapted to the (somewhat ambiguous) concept of “active support”. In this way, as Charles Call argued, MACCIH acquired a broad mandate in matters of institutional collaboration but was much weaker than CICIG in terms of executive action (Call 2018). MACCIH is therefore linked with many other government instances, not just the Ministerio Público or the Office of the Attorney General (granting it a more extended presence as a consultative instead of executive body).

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It is interesting that this design that places MACCIH as a HACA and simultaneously part of a network of anticorruption organizations allowed its faculties; specifically in areas substantive to its mandate (investigation and prosecution), it was able to promote and judicialize highly visible processes of investigation, as indicated in the document Progress and Challenges: Report on the First 2  Years of the Support Mission against Corruption and Impunity in Honduras, (MACCIH) (Call 2018). With time, the organization was able to adjust its mandate, which was defined in terms of active cooperation through the formation of highly integrated teams composed of both national and international investigators and prosecutors. These teams were known as the Special Attorney’s Unit against Impunity and Corruption in Honduras (Spanish acronym UFECIC). The objective of this chapter is to explain the challenges that MACCIH faced during its first three years of operations, as well as the ways in which it succeeded at overcoming the limitations imposed by its mandate, through adaptations and adjustments until it reached tangible results. The argument sustained in this study is that the organization overcame its mandate restrictions through the formation of integrated, truly hybrid teams of prosecutorial action with the Ministerio Público, with the practical effect of reinterpreting the formal notion of “active support”. This reinterpretation broadened the agreed-upon functions of support, supervision, and certification with the real exercise of criminal investigation. The chapter is divided into three sections. The first is an overview of the establishment, design, and rationality of MACCIH, as well as its hybrid nature. The second analyzes the creation of integrated investigation and prosecution teams (MACCIH-Ministerio Público), which allowed for a successful approach in pursuit of its mandate as anticorruption organization. The last identifies the critical features of MACCIH’s design in practice, specifically the uncertainty over an extension of its mandate or threat of abandonment, the resistance and obstructionism it faced from individuals and powerful national groups, and the intra-organizational conflict derived from a lack of autonomy in its relationship with the OAS. The argument offered in this chapter is based on an organizational analysis, initiated from an understanding of MACCIH’s hybrid nature as well as the challenges imposed in practice by its design. As with CICIG, the main challenge lies in the ways in which it sought to operate with political actors who would also be subject of investigation. This section of the book also identifies the differences between MACCIH’s limited intervention model and CICIG’s more robust technical capabilities.

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Nevertheless, these more ambiguous features of MACCIH seems to be producing a less adverse environment for its action. Lessons will be offered about the ways in which hybrid organizations with limited operational autonomy adjust their mandates in contexts of high tension and constant crisis. In addition, this chapter will contribute to a deeper understanding of the challenges international organizations face when intervening in contexts of political corruption and institutional capture by political networks and groups of organized crime. Next section will use the information available regarding some of the most important cases MACCIH has dealt with to demonstrate the particular actions and decisions that the organization has taken in its short life. It is important to consider that MACCIH is a very young organization. It would be important to keep researching the dynamics and outcomes of MACCIH, once more data becomes available, not only its decisions but particularly, its outcomes.

The Birth of MACCIH as HACA MACCIH was created in 2016 shortly after a corruption scandal involving the Honduran Institute of Social Security (Spanish acronym: IHSS), where millions of dollars were syphoned and diverted towards the financing of many electoral campaigns, including those of the sitting president Juan Orlando Hernández. The scandal generated widespread public indignation and anger.2 A strong protest movement demanded the immediate resignation of the president and the creation of an International Commission against Impunity in Honduras (Spanish acronym: CICIH). Following the somehow successful Guatemalan model (as explained in Chap. 4, CICIG can be considered a technical success; technical in terms of the capabilities to prosecute and investigate corruption), this commission would allow for independent investigation of all involved actors. At the time, Honduras held the 112th place out of a total of 167 countries in the International Corruption Perceptions Index (TI 2015) and had the second highest murder rate in the world (66 for every 100,000 inhabitants) (Gagne 2015). According to Sara Chayes’ study, When Corruption is the Operating System (2017), Honduras constituted a prototypical case of transnational integrated kleptocratic networks, or a sophisticated system of corruption where coordinated actors linked to organized crime maximized benefits at the national and international levels (Chayes 2017, 27).

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The government’s proposal to tend to this problem (as well as the 2015 corruption scandal) was the creation of the Honduran Integral System Against Impunity and Corruption (Spanish acronym: SIHCIC), a system controlled by national authorities. This initiative was diametrically opposed to what civil society demanded at the time, which was the direct intervention of international actors. MACCIH emerged in this context of conflict, offering an intermediate solution though not a necessarily an ideal one for important parts of civil society organizations or movements like the one known as “los indignados” (the outraged) (El Heraldo 2015). An important share of the public opinion believed that this new organization would constitute a “charade” (a simulation) as concerned its effectiveness in the fight against corruption, especially because it would be conducted by the same government that was involved in the scandal (Main 2016). The decision by the Honduran government to forgo an adaptation of the UN-CICIG model, and instead seek the support of the OAS had an enormous negative effect in both the legitimacy and credibility of its efforts at the time. The potential reasons for this strategy, and the OAS’s willingness to participate in a faculty that was not in its repertoire, requires much more careful and documented explanations than could be offered in this work. For the OAS, the solicited support was channeled in favor of supporting the government with the execution of regional and international conventions in matters of corruption, formalized in the Interamerican Convention against Corruption (OAS 1996) which paved the way for a new mechanism of regional cooperation (mechanism known as  The Follow-Up Mechanism for the Implementation of the Inter-­American Convention against Corruption or MESICIC created in 2001). It could be argued that the OAS’ support was coherent with what was theoretically known as the transference of anticorruption governance; hence, the OAS legitimized a new mechanisms that contributed to the spread and implementation of international norms within nations (Lohaus 2015, 159). Politically, the adoption of new tasks and the intervention in areas as important as the fight against corruption enabled greater recognition and an improved reputation as a regional body. It is also important to note that the UN was not completely absent in this process. In fact, it participated as a facilitator during the national dialog targeting the reconciliation of positions that called for a CICIH against those pushing for a SIHCIC.  Notwithstanding this role as

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facilitator, the reasons for the UN’s absence in this initiative have not been sufficiently explained. In an interview with UN officials, Charles Call claimed that some voices believed the UN itself was hesitant to duplicate the CICIG model in Honduras due to the fact that CICIG was under heavy pressure and criticism at the time (Call 2018, 10). In many respects, CICIG was just coming out of a prolonged crisis, and despite the success of the investigation and prosecution in the case of “La Linea” (analyzed in the previous chapter), it did not have many results to show in matters of institutional strengthening and transfer of responsibilities. As mentioned in the previous chapter, this was the period during which internal opposition from Guatemalan judges and prosecutors had escalated to the UN level and generated strong calls for greater controls and supervision of CICIG’s activities, which was very costly for the UN in both economic and political terms. It is also important to state that the UN was not handling a peacemaking process in Honduras as it was the case in Guatemala, where it counted with the support of the Verification Mission (MINUGUA). This implies that a Honduran intervention could not be justified as part of a previous UN process. Perhaps the fact that CICIG had been instituted in some ways as an organization outside the UN structure would also make it difficult (and possibly dangerous in terms of setting precedent) to add new intervention instruments in the fight against corruption. To what extent the backing of the UN would have changed the Honduran public’s expectations about the new intervention instrument, we will never know. What is true is that the operational model of MACCIH, proposed and implemented by the OAS as will be seen in the next few sections, is significantly less flexible and has many more hierarchical and bureaucratic controls from the OAS’ Secretary General. As the MACCIH process continues to evolve and more information can be gathered, it will be easier to debate whether this was the appropriate strategy: for example, if MACCIH achieves the correct balance between its political legitimacy and its technical capacities to help reduce corruption, with the help of other national organizations, helping to avoid a scenario of paralysis as a result of operational difficulties characterizing HACAs. In this case, it is important to consider that MACCIH is somehow managed remotely by the OAS’ Secretary General.

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Hybrid Nature, Limited Mandate MACCIH was conceived as a hybrid instrument, a HACA since its beginning. It involved the Honduran state, a community of funders, and the OAS as the regional organization (see Table 5.1). It is constituted by prosecutors and international investigation experts who work inside the Honduran state through laws, institutions, and national teams. MACCICH is financed in its totality with resources donated voluntarily by several countries such as the United States, Canada, Italy, and Peru (among others). This means that the Honduran government cannot control or limit the operations from a budgetary perspective. The donated resources are deposited directly to OAS’s headquarters, where the Secretary General controls their disbursement. From its founding, MACCIH has received a budget of 32 million dollars, averaging 8 million per year (MACCIH-­ OEA 2016, 3). From the OAS, MACCIH is granted a formal mandate that is the product of a political agreement reached with the Honduran government, which made it subject to their direction and control (in addition to the Washington, DC based OAS Secretary General, Luis Almagro). This implies that the control of MACCIH is remote in formal terms (with the Secretary General as its most senior official), which raises a variety of organizational and decision-making complexities, such as decisions regarding hiring, personnel transitions, strategic design, and budgetary oversight, as

Table 5.1  Hybridization: duties shared by MACCIH with other actors in matters of government Honduran government

International funders

OAS

The government delegates authority in a limited capacity so that MACCIG can conduct its “active support” of government institutions in processes of investigation and prosecution. The government controls the status of the organization’s mandate.

Donors grant funds and offer political backing. They do not introduce mechanisms of budgetary control.

The OAS establishes the legitimacy of the organization’s mandate from a political agreement with the Government of Honduras, but it does not grant it operational autonomy (as many important decisions are taken by the Secretary General himself).

Source: Elaborated by the author

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well as more mundane functions that require consultation from the OAS headquarters. The relationship between MACCIH and the Honduran government is fundamentally provisional (as would be expected due to its political design). The government may or not solicit the renewal of its mandate every four years, but as long as the mission is on track, the government is obligated to guarantee all the functioning conditions stipulated in the original agreement. These provisions include freedom of movement and access within its territory (8.1.1); support, supervision, and active collaboration with national institutions in charge of gathering information and processing accusations, and full access to public or military documents (8.1.2). The Honduran government also agreed to provide a group of judges, prosecutors, forensic investigators, police officers, and specialists from the Ministerio Público, the Judicial branch, and the Secretary of Security that are selected, supervised, evaluated, and certified according to the protocols established between the parties (8.2.1). The OAS reserves the right to dismantle the organization if the Honduran government ceases to cooperate in the aforementioned terms (14.1) (MACCIH Agreement 2016). MACCIH does not substitute government institutions or participate in the operational side of the political or administrative process in Honduras. Its mandate is centered in “supporting, supervising, and actively collaborating” with the Honduran institutions to prevent, investigate, and punish corrupt acts (3.1.1.2) (MACCIH Agreement 2016).3 The prosecutors and Honduran judges are responsible for investigating, prosecuting and sentencing. MACCIH, in stark contrast with CICIG, cannot conduct investigations in an independent fashion and cannot initiate legal proceedings to prosecute, which limits the exercise of its substantive functions as a classic anticorruption organization. MACCIH can investigate and prosecute but only as an adjunct to the Ministerio Público, where the achieved results do not fully depend on the organization but on the government instances it supports (MACCIH Monitor 2017). MACCIH’s mandate is thus limited from its original design (WOLA 2016). Having the OAS Secretary General as the head of the organization is, without a doubt, an enormous political advantage. From another perspective, however, the micro-management tied to such arrangement is an operational dilemma. Unlike CICIG, which in the organizational sense was able to conduct specialized, focalized and independent investigations, for MACCIH, the very rationale stipulated in its original design generates

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a dispersion of action, further removing it from a more specialized set of objectives (which, as seen in the case of CICIG, can have a significant influence on the organization’s eventual success). The objectives of this HACA are: • Contributing to the Honduran state’s successful attainment of the international objectives it agreed to, such as the Interamerican Convention in the Fight Against Corruption and the MESICIC,4 the American Declaration of the Rights and Duties of Man, and the United Nations Convention Against Corruption (UNCAC); • Support, strengthen, and actively collaborate with Honduran state institutions in charge of preventing, investigating, and sanctioning acts of corruption; • Improve the coordination between different institutions of the state which work in the area; • Propose reforms to the Honduran justice system, including legislation to strengthen the fight against corruption from the private sector; • Strengthen accountability mechanisms from civil society (MACCIH Agreement 2016). To reach the aforementioned objectives, the MACCIH works in four different areas: 1. Prevention and Combatting of Corruption Judges and international prosecutors supervise the work and bring technical support to Honduran justice entities, implement a plan of action for the meeting of MESICIC recommendations, and recommend legal and institutional reforms to the Honduran anticorruption system, including the private sector. 2. Justice System Reforms Revise and analyze the reforms advanced by justice institutions and formulate recommendations for their improvement; construct an evaluation matrix of the justice apparatus and an observation mechanism. 3. Electoral Finance Reforms Advice in all matters regarding finance norms for politics and political parties; advise in the creation of instances of electoral justice. 4. Public Safety Reforms

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Follow the progress of the evaluation report of the Citizen Security System; generate institutional norms for the protections of the justice system operators (MACCIH 2017, 2). As can be observed, both the objectives and lines of action are broad and diverse (MACCIH Monitor 2017, 2). While it is not fair to claim that MACCIH’s work is irrelevant or obsolete (every objective and action item is important), it is significant to note that the logic driving its initiatives is much more disperse (both operationally and thematically) than CICIG’s. Analyzing the Division for Prevention and Combatting of Corruption more closely, it can be observed that it is integrated by three separate units: (i) support, supervision, and collaboration in Honduran corruption cases; (ii) the tracking of MESICIC recommendations; and (iii) legal and institutional reforms for the prevention and fight against corruption in Honduras’ private and public sectors. In the strictest sense, only the first of the units is integrated by judges, prosecutors, international policemen and national professionals, as well as renowned forensic international specialists, with the proper training to perform the following tasks: • Technical consulting, supervision, and/or evaluation to ensure that the institutions of the Honduran state receive information, investigate cases of corruption, and maintain a certified reception of complaints (be they public, anonymous, or confidential) through competent governmental processes. • Technical consultations, supervision, evaluation and active collaboration with a group of prosecutors, investigators, and forensic specialists from the Public Ministry selected and certified by MACCIH to collect information, investigate, and prosecute cases of corruption involving corruption networks. • Technical consultations, supervision and/or evaluation of the Ministerio Público, the Judicial Branch, The Council of the Judicature of the Attorney General’s Office, The Inspectorate-General of Courts, The Executive Direction of Revenue, and other Honduran state entities responsible for the prevention and prosecution of corruption and impunity. The follow-up unit of MESICIC is designed to evaluate the government’s compliance in implementing the submitted recommendations that have

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been formalized in concrete plans of action.5 Its role is more supervisory than investigatory. In a parallel process, the Unit of Consulting and Reform of the Anti-Corruption System, conformed by lawyers and international forensic experts, suggest legal and institutional reforms to the Honduran Anti-Corruption System, including corruption in the private sector as well as proposals to overcome deficiencies in the legal framework. MACCIH is thus a HACA, a hybrid organization with a broad mandate with just few specific definitions of its concrete duties and with highly delimited operational faculties directed towards technical consulting. CICIG and MACCIH were created through different paradigms. CICIG was able to operate investigations and also was able to expand its capacities, developing new processes for unveiling and understanding networks of corruption. CICIG also expanded, through the definition of different organizational actions and procedures, its operative dynamic and modus operandi. In this sense, MACCIH can be better understood as a “politically correct” supporting body that consults, suggests, and assists, but allows national institutions to conduct their own investigations and gain independent technical understanding of their own corruption dynamics. This does not mean that such specialized and technical capacities for the fight against corruption cannot be obtained in the case of Honduras. If achieved, these capacities would not emerge from an endogenous learning process, however, at least not in a formal and explicit way. Any knowledge, capacity and operational instrument or action would require the cooperation and coordination of different organizations.

Limited Operational Autonomy MACCIH was inserted into a national anticorruption system that, in theory, coordinated the diverse branches of government in charge of combating and controlling corruption. The purpose of the national anticorruption system was to address the phenomenon of corruption from a broad platform of actions and proposals that ranged from prevention to sanctioning (including education, control, and supervision among others), and that horizontally linked several governmental organizations. MACCIH, as was previously stated, has a mandate that allows it to collaborate and consult with any government body. The specificities of what type of collaboration, which topics are more important than others, how to trigger such cooperation, with what kind of approach or ambition, or other clear instructions to proceed, the mandate is quite broad and ambiguous. With a broad

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design and mandate like that, as well as lack of formalization of many activities such as “active support” and “consulting”, MACCIH had to face particular challenges. Its design leaves several issues wide open to interpretation by members of the organization. MACCIH might be seen as an organization more limited than CICIG, but also less likely to be attacked as intrusive or threatening of national sovereignty (as CICIG often was). This design also allows MACCIH to build a less conflictive room for maneuver with government officers at all levels. Formally speaking, it is without question that MACCIH is but a small cog in a massive wheel of institutions with an anticorruption mandate in Honduras. Inside that wheel, they play the role of consultants more in the analytical than the technical or the operational sense. This role has its advantages, as consultation may cover important contributions such as the setting of agendas, dialogue, and coordination between institutions, and the political support of complex initiatives that any national institution may be required to confront. How MACCIH formalizes these fundamentally limited yet flexible processes will be the key to its own success. In this sense, it is important to consider the advantages and disadvantages of the remote management design of the MACCIH. The fact that the OAS Secretary General, based in Washington, DC, is considered the head of MACCIH (headquartered in Tegucigalpa, Honduras), creates both political advantages and operational disadvantages. While the Secretary’s leadership confers important political weight onto MACCIH, which is beneficial for conducting operations with less friction within Honduran state institutions, the effects of a remote micromanagement inevitably impedes smooth and clear operations. As the case of CICIG clearly demonstrated, its ability to succeed in their mandate was directly correlated with its ability to embed itself within local realities while maintaining isolation from political and economic corruption networks that blocked its investigations. MACCIH’s legitimacy, however, is strong, since attacking it form within the Honduran political system would come at a very high cost (while this strategy proved successful with CICIG in Guatemala). Yet, that same strength carries with it important operational, development, and technical challenges. How this HACA succeeds at legitimizing itself and planting the seeds for meaningful relationships within the Honduran state will be critical to the consolidation of its own success. In this way, it could be said that the organizational challenge is also significantly high.

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MACCIH is an organization divided into four highly differentiated branches by design. Each branch is headed by four independent coordinators. The risk is high that if a cohesive framework is not constituted quickly, the result will look more like four operational subcultures that define their own objectives and action strategies (and perhaps even compete with themselves for resources, legitimacy, and access). There are, in theory, some options for effective coordination, though they are not evident in the formal sense. An example would be the Spokesperson and Special Representative of the OAS Secretary General (SRSG), who is an important figure for agency cohesion in the strictest sense. In the practical sense, however, the Spokesperson lacks management functions over the other three coordinators. The spokesperson is named by the OAS Secretary General and is obligated to report on the activities, challenges, and problems facing the organization in the field, while giving the field operators scant margin of independent action. It is well studied, however, that remotely controlled agencies can obtain much autonomy due to the fact that it is the personnel on the ground who actually understand the dynamics, informal rules, and concrete steps to achieve certain actions. This speaks to an aspect of the organization that will only become clear over time: how MACCIH will resolve this dilemma of remote political control, a separate and divided organization, and an operation that requires local knowledge in order to achieve its own objectives. Indeed, there are lots of uncertainties regarding the balancing of those challenges. An example of those uncertainties can be found in the situation that emerged between Jacobo Domínguez (Coordinator of the Politico-­ Electoral Division) and the SRSG Juan Jiménez Mayor in their relationship with Honduran authorities. It seems that Domínguez had more numerous contacts than the spokesman himself, which gave Domínguez a broader toolkit to coordinate with state authorities (Call 2018, 13). Another more serious case would be the resignation of the SRSG in February 2018 due to a direct conflict with Luis Almagro, the OAS Secretary General. According to Reischke (2018), in a letter directed to President Hernandez, Almagro lamented the organization’s lack of tangible results when just a few months prior, the MACCIH and Honduran Attorney General’s office had formally accused a corruption network within the legislature (and in response, the Honduran legislative removed both the MACCIH and the Attorney General’s office powers to investigate public officials).

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After the resignation of Juan Jiménez Mayor, Luiz Antonio Guimarães Marrey, a former Attorney General of Sao Paulo, was named as the new chief spokesman of MACCIH.  This has led to several adjustments to MACICH’s mandate that will be analyzed in the next few sections. In sum, MACCIH demonstrates an intervention model where its capacities of investigation and prosecution are limited and conditioned to processes of governmental support, with its operative action subject to oversight from OAS, and its decisions affected by a lack of clear authority on the ground. How is it that MACCIH has been able to offer tangible results in such a brief timeline, with such a high level of political impact? The second section of this chapter analyzes the challenges and forks MACCIH confronted in the road during its first three years of operations, as well as the organizational actions it implemented to fulfill its mandate.

Threats and Challenges in the Implementation of the Mandate MACCIH, like any other organization, is obligated to offer results and demonstrate competence. The mandate renovation every four years marks the deadline in which the government, civil society, funders and OAS can be convinced to continue supporting its work. In order to fulfill its mandate and achieve results, MACCIH signed the Mechanism of Interinstitutional Bilateral Cooperation with the Ministerio Público, in which the Special Attorney’s Unit against Impunity and Corruption (Spanish acronym: UFECIC) was formed in August 2017. From that point onwards, the UFECIC became a key piece of MACCIH’s work, since it was from that special unit that the organization conducted its substantive functions as an anticorruption organization through integrated investigation and prosecution teams (Art 3). The UFECIC reports to the Ministerio Público but processes complaints and works exclusively with cases autonomously selected by MACCIH with international and national personnel that was selected and supervised by both organizations. The integrated investigation teams selected cases through a committee overseen by the MACCIH spokesperson and OAS Secretary General and approved by the Attorney General’s office. Only the UFECIC can present cases before the tribunals, but under the joint work scheme with MACCIH both can work together and solicit information, establish procedures, and formulate disciplinary and penal recommendations. In the strictest sense,

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this collaboration scheme allows for a work plan between truly hybrid branches, since the teams selected for each case come from both MACCIH and Honduran institutions. This workflow design guarantees that MACIH can conduct investigations and participate as an advisor and observer in the penal prosecution of all cases it considers under its mandate. Thanks to the integrated UFECIC-MACCIH teams, in three years (2016–2019), over 11 high impact investigation cases were successfully prosecuted (cases that might have damaged the states resources by 302,950.000 Lempiras or 12.6 billion dollars (MACCIH-OEA 2019, 8). Despite this success, MACCIH has not evaded the contradictions inherent in a hybrid organization, for example, balancing local effectiveness, international support (OAS and its funders in this case), and facing limited capacities for actually building a stable process for investigations and prosecutions. Even despite its careful design of having the OAS Secretary General as the official head of the organization, and not having operations specific to investigation and criminal analysis of corruption networks, MACCIH is already coming under attack from different actors, including extremely powerful members of the political system (who probably have the most to lose from MACCIH’s anticorruption efforts). In a way, despite being a more “politically correct” organization than CICIG, the problems and obstructions it is facing are no less frequent or serious. Similar to the Guatemala case, several political and economic elites are seeking to block or delay the adoption of judicial reforms that are needed in order to achieve greater efficiency of MACCIH’s work. To protect themselves, they have relentlessly attacked MACCIH not directly, but indirectly by seeking ways to restrict its faculties and prestige. It is too soon in MACCIH’s history to draw conclusions, but there is enough evidence to argue that notwithstanding its design—crafted in order to reduce the risks of ending up as CICIG that faced outright attacks by the political and economic establishment—MACCIH is about to undergo exactly the same challenges. In addition, MACCIH’s operative conditions are hampered by its organizational design that foments micromanagement and complicates specialized operative functions. Continuous analysis and proposals for new ways to expand the capabilities of this HACA seems critical to its longevity.

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Intra-organizational Conflict Although intra-organizational conflict has been present since MACCIH’s inception, it reached a crisis point in mid-2018, where the first spokesman and SRSG Juan Jimenez Mayor was forced to resign. His resignation uncovered a deep conflict between him and the OAS Secretary General (EFE 2018). At the center of mutual accusations of political and administrative inefficiency, Almargo and Jiménez Mayor brought the difficulties of remote management to light. In his resignation letter, Jiménez Mayor established that the “new national anticorruption system could not function without the necessary tools to carry out its duties, it is not a matter of political will” (E&N 2018). For him, the relationship with the head of the OAS was marked by a lack of support and swiftness in the process of administrative decision-making, as well as the lack of budgetary and administrative information. Jiménez Mayor signaled that from 33 international experts that supported the mission, 25 of them were in Tegucigalpa and 8 in Washington, without clarity on their expectations and activities. For the OAS Secretary General, MACCIH did not demonstrate important results almost two years after initiating operations. There is no evidence that the complexities stemming from the “remote control” OAS exercises over this HACA have been resolved. The OAS Secretary General is still the chief operative of MACCIH and continues making all the relevant decisions. What was adjusted was a more leading and managerial role for the spokesman and SRSG, especially in relation to other area coordinators (MACCIH-OEA 2018, 22). The rationality of leaving the OAS Secretary General as a mission chief is still an important “guard”, for the resistance against MACCIH within the country cannot be directed towards the organization itself, requiring that innovative ways of paralyzing it without confrontation with the OAS have to be concocted. A second adjustment was the reinforcing of integrated investigation teams, which have been extremely successful and have allowed processes of investigation and prosecution in agreement with its peers (Ministerio Público, for instance), the spokesperson and SRSG to select the cases requiring investigation. Today, beyond the penal investigation teams, separate teams for domain theft or recovery of resources have been created (MACCIH-OEA 2018, 22). These minor developments shed light on the ways in which the organization has attempted to operationalize its mandate and functions, add new tasks, broaden its room for action, and gain a

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more focalized influence in processes of investigation against corruption networks. The reinforcement of the working model consisting of integrated teams makes a lot of sense as it has demonstrated relative success, moreover, it balances the position of MACCHI in terms of pairs. The Public Ministry has the faculties to investigate and prosecute, MACCIH only brings the active support for those procedures. This can be understood as a process of consultancy, supervision, and support, but in practice, the interpretation of active support has been amplified to include the practice of focalized investigation and prosecution, which did not enjoy as much weight in the original mandate. These types of legally constructed teams have turned into a powerful mechanism of action that also allow for other types of interinstitutional collaborations, specifically the ability to form other organizations specialized in the fight against corruption (such as the Prosecution for Transparency and Combating of Political Corruption or FETCCOP-MP in its Spanish acronym) (MACCIH-OEA 2018, 10). The role of the spokesman and SRSG is very important here, as their presence and leadership are fundamental both to select and train personnel, as for identifying the cases brought up for investigation in collaboration with MACCIH’s peers. Resistance and Obstructionism The obstructionism of MACCIH has been manifested in diverse forms: from the freezing of laws and reforms that are fundamental to the adequate functioning of the justice system (as is the case with the Plea-­ Bargaining Law or the Secrecy Law regarding the classification of public documents that were pushed by MACCIH since April 2017) to the modification of laws to bring legal protections to the accused, and/or adoption of constitutional resources to disarticulate the innovative integrated work teams. It is interesting to observe that the more MACCIH has evidenced the existence of corruption networks involving officials and characters of high rank, the more the resistance and obstructionism it has faced  (Santos 2018). Throughout 2018, this resistance was particularly strong and manifested as an immediate response to the cases that the integrated work teams MACCIH-UFECIC brought to light. In those two initial years of operations (2016–2018), about eight cases of corruption at the highest levels implicating 402 individuals and 9633 million lempiras were opened

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(MACCIH Monitor 2018, 4). The cases were: fraudulent networks of the IHSS, the network of legislators, La Caja Chica de la Dama, the Pact of Impunity, the fraudulent contract biddings of IHSS, Pandora, La Caja Chica del Hermano, and Arca Abierta.6 Most of these cases triggered great resistance from the legislature, public officials, and former presidents (as will be seen below): • The Network of Legislators case identified five congressmen who were appropriating public funds destined to NGOs for the development of community projects that were never executed (E&N 2019). This case involved a total of 8.3 million lempiras. It triggered great resistance in the Honduran Congress, which in turn passed the Law of Budgetary Amendments with which it removed the investigation of the implicated congressmen from ordinary justice, giving the files to the Superior Audit Tribunal (Spanish acronym TSC) under the argument that it was the only organization capable of auditing public funds. In practice, this decision by the Congress served the accused congressmen, since the investigations were delayed for at least three additional years. • The case of Caja Chica de la Dama (or The Lady’s Savings Account) accused Rosa Elena Bonilla de Lobo, wife of the former president Porfirio Lobo, for asset laundry, misappropriation, and illicit association. Bonilla de Lobo was accused of withdrawing 1.6 million lempiras (close to 680,000 dollars) from the office of the First Lady and depositing them in her personal checking account days before the end of her husband’s term (Call 2018, 21). In this case, the involved tribunals reduced the charges. One second instance tribunal declared that there was no “asset laundry” and the Court of Appeals in Matters of Corruption accepted the argument, explaining that the role of First Lady did not constitute a public post, despite the fact that she received a salary of 80,000 lempiras per month (about 3400 dollars). In this case, the tribunals reduced the charges of asset laundry and misappropriation and kept the charges of fraud and improper use of resources (Call 2018). • The case known as Pact of Impunity originated to accuse the congressmen that participated in the development of the Law of Budgetary Amendments (previously cited), with the intention of bringing judicial protection in favor of the five accused congressmen who were being processed for the Network of Legislators case. In this

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file, several legislators that did not follow the required procedures for the development and approval of the law were identified and accused. Regardless, the Congress passed an additional modification of the laws and normalized these types of activities. • The case of Pandora, presented in June 2018, involved more than 38 former congressmen, former ministers, and party leaders in the millionaire embezzlement of the Secretary of Agriculture and Cattle for an amount of 282 million lempiras (or 11.6 million dollars) to finance political campaigns (MACCIH Monitor 2018, 10). In contrast with other cases in which various sitting congressmen were implicated, this case involved officials from the three largest political parties in the country; the National Party, the Liberal Party, and the Broad Political Electoral Front in Resistance Party. In respect to this case, MACCIH warned against the contradictory application of the Asset Laundry Law, as it was used for the millionaire embezzlement of IHSS but was denied in the Pandora case due to its involvement of high-profile officials. Other cases investigated by MACCIH-MP that illustrated the magnitude of political corruption prevalent in the country are the Fraudulent Contract Biddings of IHSS, which involved the purchase of high-value equipment that during bidding had offered a price far beyond the IHSS capacities (but which still favored the vendor DIMESA S.A.). This solidified the purchase of overvalued medical equipment with a price 114% above market value. It forced the IHSS to pay monthly installments on the maintenance of medical equipment that was stored in warehouses and never utilized (MACCIH Monitor 2018, 5). Arca Abierta (November 2018), involved 12 congressmen and ex-­ congressmen for embezzlement charges totaling 21.1 million lempiras (or 879,000 million dollars) through the Green Planet Foundation for the trespassing of funds to personal checking accounts of themselves or their families. The Caja Chica del Hermano (or The Brother’s Savings Account) involved Ramon Lobo, the former president Porfirio Lobo’s brother, and Wilfredo Cerrato Duron, a former Secretary of State in Presidential Management and Financial Administration for fraud and embezzlement totaling 8.4 million lempiras. It goes without saying that all of these cases have turned into virtual battlefields between public officials and the MACCIH.

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Regardless of the results obtained by MACCIH in matters of investigation and prosecution, many other laudable results have been achieved while resistance and political obstruction has been more moderate. An example would be electoral campaign financing, where MACCIH succeeded with the approval of the “Clean Politics Law” (officially the Financing, Transparency, and Political Party/Candidate Law), which imposes limits to campaign contributions and a registry of all donors. The law also created a new Financing, Transparency and Supervision unit within the Supreme Electoral Tribunal (Spanish acronym TSE), informally known as the Clean Politics Unit, enabled to sanction candidates and parties (even disqualify them) if they receive money from illegal or undeclared sources. The unit can also present cases to the Ministerio Público or the Attorney General for due processing. Clearly, obstructionism is a lot more evident in some areas than others. The concept of a civil service observatory that supervises judge decisions and judicial processes is very fortunate and has not been questioned from power circles, though it has not been extent from problems and difficulties in its formalization and has advanced very little in recent years. In general terms, however, in relation to its investigative functions as an anticorruption organization both the legislative and executive powers have attempted to block MACCIH and impede reforms in laws that are substantive to the strengthening of investigations such as the Public Document Classification in Matters of Defense and Security and the Law of Effective Collaborations (Santos 2018). As Noe Pino stated, “it is highly irregular that the National Congress has included in the 2018 budget approval, a norm that solicits the intervention of the national comptroller (Tribunal Superior de Cuentas) in the initiation of an auditing going back to 2006 of all public funds received by members of congress” Schuster 2018, n.p.). And clearly “this allowed the shielding from any judicial action for all cases that the Attorney General’s office (backed by MACCIH) will pursue in the near future” (Schuster 2018, n.p.). The next obstacle was very serious and came in March of 2018. It involved some legislators who had taken a case against UFECIC to the Constitutional Chambers of the Supreme Court. If the Constitutional Chamber agrees with the legislators, the capacity for investigation for both the UFECI and MACCIH would become severely restricted. The case is still under review by the Constitutional Chamber. The integrated investigation and prosecution team formula is key, though it lacks another component the CICIG has which is that of the

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“private prosecutor”. This model allows for a clearer image of a transfer of responsibilities in favor of a joint and coordinated action model of investigation. The disarticulation of MACCIH’s counterpart will be a significant blow to the organization, since its work with the special prosecutor has not just been incredibly successful but has also allowed MACCIH to conduct investigation and prosecution work under the model of active support and collaboration. Without it, MACCIH loses all its investigatory and prosecution faculties, which are quintessential to any anticorruption organization. The leadership problems, lack of operational autonomy, and political obstructionism constitute practical challenges that the MACCIH must confront. Its working model is unique and different to CICIG (Arrazola 2016). Among many other things, it provides MACCIH with an ample faculty to select, monitor, and certify personnel with whom it collaborates with UFECIC, as well as the power to influence the naming of judges and prosecutors, and consult with all agencies that make up the integrated anticorruption system (Lohmuller 2016). In sum, the active support model of MACCIH-UFECIC allows for an integrated investigation and prosecution strategy that goes beyond technical assistance. Under this model, MACCIH selects the cases suitable for collaboration and is granted access to information, interviews, databases, and other investigatory tools. As part of its mandate to supervise corruption cases, MACCIH can recommend disciplinary control and penal prosecution mechanisms.

Lessons Gained from MACCIH’s Organizational Challenges MACCIH was born as a “supportive” anticorruption organization with a broad mandate. The creation agreement did not grant it independent investigation and prosecution faculties or a true operational autonomy. Regardless, the organization developed competence in investigation and judicialization through integrated work teams with the Ministerio Público as part of its “active support”. According to Noe Pino, “what the Honduran political system never took into account was that MACCIH, under Jimenez Mayor’s leadership, would take its role seriously, and investigate corruption complaints related to political elites, businessmen and other sectors of society” (Schuster 2018, n.p.). As a result, “MACCIH has

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presented complaints against legislators (mostly ex-legislators at this point) regarding the use of public funds through civil service organizations. More than 60 congressmen have been involved in these investigations, including the president of the National Congress” (Schuster 2018, n.p.). Despite the fact that it has successfully implemented its mandate, and in the first three years has judicialized 11 high impact cases, MACCIH’s future remains uncertain upon the upcoming 2020 mandate renewal. Ironically, similar to CICIG, the more successful results in investigating and pushing for prosecution of important corrupt activities it has achieved, the more resistance and obstructionism it has faced. Resistance from national authorities has been expressed in many different forms, ranging from sentence reductions to the disarticulation of its successful integrated teams. All of it adds up to a strong sign that MACCIH has not succeeded at resolving the profound contradictions embedded in its hybrid nature. The hybrid design of MACCIH could not foresee the intensity of opposition and resistance it would face while working within fully captured legal systems and institutions. Despite its high level of financial autonomy, MACCIH failed in truly isolating itself from political dynamics, resistance, and obstructionism. While it tried to generate counterweights so the national institutions responsible for anticorruption efforts could operate without being blocked or infiltrated, without truly independent faculties, MACCIH has not been able to institutionalize those balances. On the other hand, it is interesting to note that MACCIH uncovered an innovative way to achieve its objectives under the ambiguity of the “active support” model in the pragmatic sense, evolving from the notion of technical consulting to the true supervision and certification of effective investigation and prosecution efforts. The role of spokesman and SRSG, and his participation in the integration, supervision, and execution of these hybrid two person teams is important and much better defined within the hierarchical model (with the faculty to select cases for investigation in a truly joint fashion through integrated teams that were formed ad casum).

Notes 1. Some of these instances include the Ministerio Público, the Superior Tribunal of Accountability, the National Commission of Banking and Insurance, the Institute for Public Information Access, the Administrative Office of Seized

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Properties, the Judicial Power, the National Office of State Purchases and Acquisitions, the Administrative Service of Leasing, the Secretary of Security, and the District Attorney’s Office (among others). 2. The representatives of these movements used the name “the outraged” (“los indignados”) and their street protests were known as the “march of the outraged” (“marcha de los indignados”) or the “torch march” (“marcha de las antorchas”). 3. “Certifying” is defined as the oral or written manifestation whereby the MACCIH-OAS instances certify that the procedures, acts, and/or resolutions documented by the Honduran authorities are legally sound. “Evaluating” is defined as an action, procedure, or protocol through which the actions of Honduran authorities are evaluated, leading to observations or recommendations with the purpose of improving their institutions. “Supervising” is defined as an action and/or procedure whereby Honduran authorities are supported in their daily actions to verify the proper application of national legislation, as well as the application of their own observations (MP-OEA 2017, seventh section). 4. The MESICIC is the Follow-Up Mechanism for the Implementation of the Inter-American Convention against Corruption of the OAS. It was created in 1996 and, along with the convention, constitute the two principal instruments to prevent, detect, sanction, and eradicate corruption in the Americas. For further information, see the OEA portal http://www.oas.org/es/sla/ dlc/mesicic/default.asp. 5. The MESICIC has conducted four rounds of evaluations (2006, 2008, 2011 and 2015). Honduras has participated in three of them, as during the first round the country had been suspended from the organization. 6. Luis Santos, Director of UFECIC, “Corruption in Honduras: Can MACCIH Make a Dent? Inter-American Dialogue Conference, July 31, 2018. https://www.youtube.com/watch?v=gdTEFdwuNw8.

References American University Center for Latin American and Latino Studies. 2017. The MACCIH Monitor, Issue 1, November 21. https://www.american.edu/centers/latin-american-latino-studies/upload/11-21-17-MACCIH-Monitor1-ENGLISH-FINAL.pdf. ———. 2018. The MACCIH Monitor, Issue 5, August 30. https://www.american.edu/centers/latin-american-latino-studies/upload/MACCIHMonitor-5-English.pdf. Arrazola, Carlos. 2016. La MACCIH es el modelo de Honduras, no somos una copia de la CICIG.  Entrevista a Juan Jiménez Mayor. Plaza Pública, 9 de

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­septiembre de. https://www.plazapublica.com.gt/content/la-maccih-es-elmodelo-de-honduras-no-somos-una-copia-de-la-cicig. Call, Charles. 2018. Avances y desafíos: Informe sobre los primeros dos años de la Misión de Apoyo contra la Corrupción y la Impunidad en Honduras, (MACCI). American University, Center for Latin American and Latino Studies. Chayes, Sara. 2017. When Corruption is the Operating System. The Case of Honduras. Washington, DC: Carnegie Endowment for International Peace (CEIP). EFE. 2018. Renuncia el jefe de la Misión de la OEA en Honduras por diferencias con Almagro. Tegucigalpa, febrero 16. https://www.efe.com/efe/america/politica/ renuncia-el-jefe-de-la-mision-oea-en-honduras-por-diferencias-conalmagro/20000035-3525699. El Heraldo. 2015. Una fusión entre la CICIG y la SIHCIC será la propuesta de la OEA. El Heraldo, septiembre 9. https://www.elheraldo.hn/pais/878364-214/ una-fusi%C3%B3n-entre-la-cicih-y-la-sihcic-ser%C3%A1-la-propuesta-de. E&N. 2018. Exjefe de Maccih critica falta de apoyo del Estado de Honduras. E&N, de febrero 16. https://www.estrategiaynegocios.net/lasclavesdeldia/1152939-330/exjefe-maccih-critica-falta-de-apoyo-del-estadode-honduras. ———. 2019. “Honduras: OEA bajo fuego por debilitar la lucha anticorrupción.” E&N, de febrero 16. https://www.estrategiaynegocios.net/lasclavesdeldia/1152905-330/honduras-oea-bajo-fuego-por-debilitar-luchaanticorrupci%C3%B3n. Gagne, David. 2015. InSight Crime 2014 Homicide Round-up. InSight Crime, de enero 12. https://honduprensa.wordpress.com/2015/01/12/insightcrime-2014-homicide-round-up/. Lohaus, Mathis. 2015. Ahead of the Curve: The OAS as a Pioneer of Interstate Anti-Corruption Efforts. In Governance Transfer by Regional Organizations. Patching Together a Global Script, ed. Tanja Börzel and Vera Van Hüllen, 159–177. London: Palgrave Macmillan. Lohmuller, Michael. 2016. Honduras’s OAS-Backed Anti-Corruption Body Takes Flight. InSigth Crime. enero 16. https://www.insightcrime.org/news/brief/ honduras-oas-backed-anti-corruption-body-takes-flight/. MACCIH (Misión de Apoyo contra la Corrupción e Impunidad en Honduras). 2016. Agreement between the Government of the Republic of Honduras and the General Secretariat of the Organization of American States for the Establishment of the Mission to Support the Fight against Corruption and Impunity in Honduras, January 2016. ———. 2017. Plan de Trabajo. Washington, D.C.: American University. http:// w w w. o a s . o r g / e s / s a p / d s d m e / m a c c i h / n e w / d o c s / P P T- P l a n - d e Trabajo-2017-Ver-Esp-21-marzo-de-2017.pdf.

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MACCIH-OEA. 2016. Primer informe Semestral, octubre 19. ———. 2018. Quinto informe semestral “Hacia el fortalecimiento Institucional. El binomio UFECIC-MP/MACCIH-OEA: rompiendo paradigmas”, octubre 19. ———. 2019. Sexto informe semestral “Hacia el fortalecimiento Institucional. El binomio UFECIC-MP/MACCIH-OEA: rompiendo paradigmas”, abril 2019. Main, Alexander. 2016. An Anti-Corruption Charade in Honduras. The New York Times, February 15. https://www.nytimes.com/2016/02/16/opinion/ an-anti-corruption-charade-in-honduras.html. MP-OEA (Ministerio Público-Organización de Estados Americanos). 2017. Mecanismo Interinstitucional de Cooperación Bilateral entre el Ministerio Público de la República de Honduras y la Secretaría General de la Organización de Estados Americanos a través de la Misión de Apoyo contra la Corrupción y la Impunidad en Honduras (MACCIH-OEA), enero 17. OAS (Organization of American States). 1996. Inter-American Convention against Corruption, March 29th, Washington D.C. http://www.oas.org/en/ sla/dil/inter_american_treaties_B-58_against_Corruption.asp. Reischke, Martin. 2018. Honduras: ¿un mero paliativo contra la corrupción? América Latina. https://www.dw.com/es/honduras-un-mero-paliativo-contra-la-corrupci%C3%B3n/a-43629335. Santos, Luis. 2018. Corruption in Honduras: Can MACCIH Make a Dent? Conferencia Inter-American Dialogue, July 31. https://www.youtube.com/ watch?v=gdTEFdwuNw8. Schuster, Mariano. 2018. Honduras: entre la corrupción y el fraude. Entrevista a Hugo Noé Pino. Nueva Sociedad. Democracia y Política en América Latina, Febrero. https://nuso.org/articulo/honduras-entre-la-corrupcion-y-el-fraude/. TI (Transparency International). 2015. Indice de percepción de Corrupción. https://transparencia.org.es/wp-content/uploads/2016/01/tabla_sintetica_ipc-2015.pdf. WOLA (The Washington Office on Latin America). 2015. Elementos clave para una lucha frontal contra la impunidad y corrupción en Honduras, October 22. Washington, DC: WOLA. https://www.wola.org/es/2015/10/elementosclave-para-una-lucha-frontal-contra-la-impunidad-y-la-corrupcion-enhonduras/. ———. 2016. La MACCIH un organismo con imperfecciones pero con potencial. enero 19. WOLA, Washington, DC. https://www.wola.org/es/2016/01/ la-maccih-un-organismo-con-imperfecciones-pero-con-potencial/.

CHAPTER 6

CICIG and MACCIH: Two Models of Hybrid Anticorruption Agencies

Abstract  The HACAs that emerged in Central America to identify and dismantle networks of corruption and criminality were able to successfully implement their mandates, despite the fact that certain political and diplomatic challenges forced them to build designs with important contradictions and limitations. This chapter argues that HACAs have achieved important accomplishments and, despite their great political and operational complexities, and the termination of CICIG, are indeed replicable in other national contexts. Nevertheless, some argue that HACAs in reality might actually weaken the states’ capabilities to face the huge problematic of corruption. This debate implies a deeper evaluation of these instruments, their desirability and viability under the umbrella of the challenges political reality imposes on international and regional governance schemes. Keywords  Hybrid Anticorruption Organization • Interinstitutional collaboration • Special Anticorruption Prosecutor’s Unit • Investigation-criminal prosecution • Central America In the fight against corruption, paradoxically, CICIG and MACCIH are organizations that can be dismantled quickly (as has occurred with CICIG while this book was being edited). Their longevity depends on the © The Author(s) 2020 L. Zamudio-González, International Intervention Instruments against Corruption in Central America, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-40878-7_6

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decisions of diverse political and governmental actors who may fall under investigation themselves or simply feel threatened by the organizations’ actions. These organizations have succeeded at identifying and dismantling networks of corruption and criminality at the highest levels of decision-­making/government, and, even when several local civil society organizations defend that they are effective tools in the fight against corruption (TI 2017), their relationship with governments is in reality quite conflictive. In Guatemala, CICIG was successful at identifying more than 60 criminal networks and processing more than 1200 persons (CICIG 2017–2018, 7), but the administration of Jimmy Morales believed the organization was stretching too far its faculties and decided to resist and fight, both politically and legally, against it. In August of 2018, the president of Guatemala kicked out the CICIG personnel, and has since blocked the reentry of its Commissioner Iván Velásquez in response to CICIG’s investigation of corruption in different electoral processes. It was during that same electoral cycle when the government was fighting to renew its term in June 2019 that the political class excluded all candidates who may have solicited the organization’s mandate renewal (including former prosecutor Thelma Aldana). The winning candidate in the election announced that CICIG’s mandate would not be renewed due to the fact that its services would “no longer be required”. Consequently, CICIG ceased its operations in September 2019. A similar situation is already underway in Honduras. MACCIH has judicialized eight cases with 402 persons involved, including congressmen, former ministers, and family members of former presidents (MACCIH Monitor 2018, 4). Unfortunately, after several legal setbacks meant to dismiss those corruption cases, the Honduran Supreme Court declared the Special Atorney’s Unit against Impunity and Corruption (UFECIC) unconstitutional (the strategic partner of MACCIH that guarantees its successful operations). This move by the courts does not bring certainty to the future of UFECIC, but a negative outcome may paralyze MACCIH’s capacity to formulate its cases of investigation and criminal prosecution. Thus, what is happening in Central America is a curious development from the perspective of international organization studies. In general, organizations are systemic social creatures, and once created, they seek survival, adapt, and assume new tasks with the ends of becoming viable (Reinalda and Verbeek 2005). In both of the cases studied, however, their capacity to adapt and their successes is exactly what has

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endangered their survival. Thus, it may not be easy to understand the real threat of abandonment these innovative international organizations face when they succeed in finding models that allow them to achieve their principal objectives: effectively conducting investigations and prosecuting corruption. As specified in Chap. 2, defining and measuring corruption is quite difficult. It is even more difficult to define success as concerns fight against corruption just with some data or statistics referring the number of cases investigated or persons put into jail. Nevertheless, the international community has launched several instruments, regulations, and agreements in order to tackle the problem of corruption. These HACAs are among those instruments which specifically aim to build organizational capacities for investigating and prosecuting different acts of corruption in countries where such capacities are seen as low or even almost non-existent. What is clear now is that, creating national capacities for fighting corruption is a daunting and complex political process. Even more so if it is attempted through the intervention of international organizations like the HACAs analyzed in this study. The crisis that led to the dismantling of CICIG (and potentially MACCIH in the near future) opens up an unexplored path for academics. It also points to an uncertain future for the population in a region with a history of stifled economic development due to high levels of corruption (as demonstrated by scandals such as “The White House” in Mexico, “The Panama Papers”, “Lava Jato” in Brazil, and “Odebrecht” in more than 10 countries in the region). What began as an important yet perhaps rushed experience to combat corruption has become both a success story and a somewhat frustrating defeat. What lessons should we draw from these experiences? What are their strengths and weaknesses (both in their design as in their effectiveness as international organizations)? Why has not it been possible to sustain and institutionalize these types of interventions in cases where the domestic political will actually existed, at least to some degree? What lessons can be drawn from this paradox with the objective of proposing a clearer vision of governance and international interventions in captured states? The objective of this section is to build some lessons from these two intervention stories with hybrid organization models, recognizing their role in the fight against corruption and their creation of new spaces of authority and governance at the domestic level. The chapter is divided into two sections: the first identifies the substantive differences in the

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established models (their strengths, weaknesses and long term challenges), and the second presents both cases as empirical evidence in the study of the role of international organizations in global politics (in their capacity as critical autonomous actors in new forms of governance).

CICIG and MACCIH: Unique Experiences, Different Models The CICIG and MACCIH were created to intervene in national jurisdictions with a severe lack of independence in processes of investigation and criminal prosecution (as well as malfunctioning legal system) due to state capture and political infiltration by powerful interest groups creating mechanisms of impunity. In that context, a radical proposal was conceived, introducing a hybrid organization; an international component subject to the laws of a national government, but with enough independence to generate credibility, legitimacy, and credible autonomous neutrality—. The strategy was to build a “ditch” strong enough to halt the capture of state institutions with the objective of helping them reestablish the conditions for the effective application of justice, surveillance, and prosecution. Their very conception was thus made in a crisis context: the acknowledgement that a state is incapable of resolving the capture of its own institutions. Thus, an intervention by external actors with high degree of autonomy and credibility owing to their neutrality is deemed justifiable, even urgent. As Krasner and Risse (2014) argued, this type of intervention operates under conditions of “limited statehood”. In the Weberian sense, “statehood” implies “an institutionalized structure with the ability to rule authoritatively (Herrschaftsverband) and to legitimately control the means of violence” (Weber 1921/1980 cited in Krasner and Risse 2014, 545). From the point of view of the international relations discipline, this proposal is deemed revolutionary for several reasons. First, because it goes against the dominant state-centric paradigm that emphasizes the logic of sovereignty as the central variable of any model of action or international negotiation. Under this paradigm, consolidated states exercise territorial sovereignty: “consolidated states possess the ability to authoritatively make, implement, and enforce central decisions for a collectivity. In other words, consolidated states command domestic sovereignty, that is, the formal organization of political authority within the state and the ability of public authorities to exercise effective control within the borders of their own polity” (Krasner 1999, 4).1 As Krasner argue, however, no state

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hierarchically governs at all times and in the conditions that sustain territorial sovereignty. Another case of partial sovereignty is precisely mirrored in the two case studies, where it was observed that the institutions holding sovereignty were fully captured by diverse political agents. The presence of legalized organizations in the realm of domestic sovereignty with authoritative qualities like HACAs is, no doubt, a new phenomenon that offers experiences allowing for a less statist approach to methods of authoritative governance (Lake 2010). Beyond contributing to the construction of domestic capacities, the adoption of better processes, or the elaboration of legislative reforms, HACAs shed light on challenges and opportunities in the construction of new authoritative schemes (both between states and for the international community at large) that defy traditional notions of sovereignty. As hybrid organizations, HACAs do not exert authority in a direct fashion. In fact, they cannot impose themselves over national authorities, as seen in the territories administrated by trusteeships like in the case of Kosovo from 1999 until 2008 (Lake and Fariss 2014). In reality, HACAs correspond to a modality that is perceived as less intrusive, creating a framework of support and institutional strengthening with the objective of strengthening state capacity domestically to face the challenges of organized crime and corruption. This is a dynamic that may come closer to traditional processes of state building through external interventions (Börzel and Van Hüllen 2015; Matanock 2014). HACAs, like their “cousin” organizations, Anticorruption Agencies (ACAs), conduct multiple tasks ranging from prevention to asset recovery, including training, supervision, technical consulting, and accountability mechanisms. The substantive functions that feed its operative component, however, are those of investigation and criminal prosecution. It is thanks to these functions that HACAs are able to build well founded cases based on solid evidence, guaranteeing proper results once they are sent to the tribunals. As this study shows, the design of these HACAs is not identical, and their differences are critical to understanding the results they were able to attain over the course of their tenures. From the cases included in this work (including an analysis of CICIACS), three distinct HACA models can be identified (see Table  6.1). The Guatemala International Commission against Illegal Bodies and Clandestine Security Apparatuses (CICIACS) was never materialized in practice, but that does not exclude it from serving as a useful reference. As a brief reminder, this model was rejected by the Guatemalan government

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Table 6.1  Models of hybrid anticorruption agencies in Central America Model

Mandate length

Substantive functions

CICIACS CICIG

5 years 2 years

MACCIH

4 years

Independent investigation and criminal prosecution Independent investigation with limited criminal prosecution contingent on Public Ministry support Investigation and criminal prosecution subject to active collaboration with national authorities

Source: Elaborated by the author

on the argument that it violated domestic legislation by allowing organizations beyond the Ministerio Público to independently conduct investigations and criminally prosecute suspects. This proposal represents the most robust technical model, as it was conceived with a five-year mandate completely independent from the Ministerio Público and the Attorney General’s office with full investigation and prosecution powers. As such, it could be situated in one of the extreme ends of the spectrum where international organizations can be granted direct authority in a structure parallel to government institutions. The second UN proposal, the International Commission against Impunity in Guatemala, CICIG, eventually gained approval with a far more limited mandate of two years and a separate model for investigation and prosecution, where investigation can be conducted in an independent fashion, but prosecution depends on the agreement of state institutions. The prosecution process is thus given several buffers, where CICIG can only initiate a petition and offer support to the corresponding national authorities (specifically the Ministerio Público) in the role close to a “private prosecutor”. The “private prosecutor” becomes an independent vehicle of the process, with the ability to exert penal action, solicit proof, and require decisions from the tribunals, but these faculties are not autonomous, but fully at the discretion of the Ministerio Público and its approval by the judicial branch (WOLA 2015, 16). This results in an intermediate position for CICIG, being both an independent actor embedded in the process and an external mole that is highly vulnerable to the ebbs and flows of politics, open to obstructionism and threats affecting its survival. The Support Mission against Corruption and Impunity in Honduras (MACCIH) was created by OAS with a longer four-year mandate, which granted it a longer timeline to achieve results. Its design, however, does not grant it formal powers of independent investigation and criminal

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prosecution. These faculties are inserted under an ambiguous scheme of “active support”, where MACCIH must directly collaborate with government institutions. Thus, of the three models, MACCIH is the one that appears to be more limited in its substantive functions. As can clearly be observed, CICIG and MACCIH exhibit different balances and ranges of action in their faculties. While CICIG enjoyed greater independence, it is subject to a shorter mandate. In practice, this combination imposes serious challenges for an organization, forcing it to attain results determined by an incredibly restricted timeline. MACCIH, on the other hand, has a longer mandate, but is significantly bounded in its faculties, forced to “actively support” actors who may or may not be interested in that support. Furthermore, MACCIH is inserted in a national integrated anticorruption system, where several state agencies have the obligation to address the same phenomenon, whose support may involve any of those instances or their multiple activities. In contrast, CICIG was inserted in a context where no anticorruption system or agency existed, allowing for the centralization of all functions exclusively with the Ministerio Público and Attorney General’s office. The HACA models also differ in their organizational structures derived from the international organizations that created and managed them (see Table 6.2). In this sense, CICIG had a greater range of operational autonomy, where the UN Secretary General named commissioners and granted them full decision-making powers and exercise over the organization’s budget. Beyond this clean hierarchical design, it should also be noted that CICIG was not officially considered a branch of the United Nations, but an independent organization with a loose link to its “principal” (expressed with a more instrumental link between the UN Secretary General and the Commissioner). Table 6.2  Differences derived from HACAs relationships with their supporting organizations

CICIG

MACCIH

Operative autonomy Political protection

Resistance and obstructionism

Autonomy from the Little political UN and the SG protection from the UN Lacking autonomy Increased political from the OAS and protection from the the SG SG and OAS

Frontal attacks against the commissioner and his staff

Source: Elaborated by the author

Indirect attacks targeting the disarticulation of its operative arm (UNFECIC).

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In contrast, MACCIH responded directly to the OAS Secretary General, thereby lacking operational authority. All relevant decisions regarding the functioning of the organization were formally taken in Washington D.C., a dynamic that affected several logic and practices on the ground. Despite this complex logic of decision-making, the relationship between OAS and MACCIH tended to be more political than instrumental in many respects. The political cost of attacking and directly opposing the organization was much higher (understood as a direct attack on the OAS Secretary General and the international organization itself rather than just the commissioner of an independent body). In practice, this difference is clearly palpable, as the attacks on CICIG were always direct and personal, and those against MACCIH have been indirect and geared towards the dismantling of its operative branch (the UFECIC) without entering into direct conflict with the OAS. A third variation in the HACA models is the relationship between their investigation branches, in particular, the specialized investigatory units that were created to support them (see Table 6.3). The Special Prosecution against Impunity (Spanish acronym: FECI), previously known as the Special Prosecution Unit attached to CICIG (UEFAC), was created through the Bilateral Cooperation Agreement Between the Guatemala Public Ministry and CICIG (2008). The FECI has been a key component of CICIG’s work, though it was initially constituted as a mechanism of support and collaboration with the Ministerio Table 6.3  Operational differences between the prosecution special units in support of HACAs Special unit

Autonomy in case selection

Coordination/team integration

Personnel selection

FECI (CICIG)

Investigates cases selected by CICIG and Ministerio Público Investigates cases selected autonomously by MACCIH.

Integrated by Guatemalan personnel with consultative and technical support from CICIG. Integrated by interinstitutional groups of two

Personnel selected by Ministerio Público and CICIG.

UFECIC (MACCIH-­ OEA)

Source: Elaborated by the author

Personnel selected by Attorney General and certified by MACCIH.

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Público. This unit is integrated by Guatemalan personnel, selected, trained, and supervised by international CICIG staff whose responsibility is to support CICIG in the investigation of cases that have been selected through an agreement between the organization and the Ministerio Público. As for MACCIH, the Special Prosecution Unit against Corruption and Impunity in Honduras (UFECIC) was created in 2016 by the Interinstitutional Cooperation Mechanism between the Ministerio Público and MACCIH-­OEA with the objective of investigating cases specifically identified as falling into the HACA’s model. The UFECIC in Honduras is expressly designed to achieve integrated faculties of investigation and criminal prosecution with mixed teams (integrated by prosecutors, criminal investigation experts, forensic accountants, and forensic information specialists from both domestic and international backgrounds). These teams are constructed on an ad hoc basis once the assigned cases are decided by MACCIH with a high degree of autonomy. It is important to mention that they are enabled to join other units or investigation teams depending on the nature of the cases under investigation. Thus, the structures are flexible enough to adapt to the needs of each individual case. In general, the tendency with special teams has been greater integration and more effective joint efforts, amplifying capacities and strengthening the functions and room for maneuver of hybrid agencies. The integration between MACCIH and UFECIC was so intense, for example, that most Honduran judges and congressmen targeted their resistance and opposition efforts squarely on the UFECIC. In Guatemala, the dismantling of FECI did not have the same effect due to the fact that CICIG, as previously discussed, had independent investigation faculties, which is the main explanation for the frontal attacks it has suffered. The comparison between these HACA models allows to identify three important lessons for the functioning of these instruments. The first lesson is that each HACA reflects a particular design of balances between actors, capacities, and functions, where processes of integration take place over time, while each organization has to deal in practice with the local context. In this sense, there is no single model of action. Each HACA, then, has to deal with the specifics and complexities of their own contexts, adapting and negotiating their way with local and international actors. As mentioned before, for instance, if we analyze the way in which the HACAs link themselves with their “peers” (the national organizations which HACAs need to work with) building team works with them, at the operative basis, we would also observe mutual adjustment processes. Adjustment

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processes that also require creating some learning dynamics and mutual efforts to build trust among all organizations involved. Acknowledging that a deeper analysis of mixed work teams (instituted from different prosecution units) is needed, it is worth mentioning that both CICIG and MACCIH allowed for diversity of design in these processes of collaboration and decision-making. The ways in which they integrated and executed their functions is a perfect reflection of their unique contexts, the degrees of power that were delegated to them, the flexibility and autonomy they were granted by their principal organizations, and the ways in which they interpreted their mandates and objectives. Regardless, their most important contradiction remains: the fact that they must cooperate with actors from the same political system that might be under investigation for corrupt activities. After all, the HACAs depend on diverse actors’ support, some of them already entangled in the corruption networks they are supposed to dismantle. This is no small contradiction, for it is expected that HACAs fully destroy corruption networks and bring previously untouchable individuals to justice. Nothing less than indisputable evidence of concrete results will grant them the legitimacy they need to survive. And yet, succeeding such undertaking turns HACAs into immediate targets for those same powerful actors, who have the means to trigger legal, procedural or political tools to protect themselves and destroy or weaken them in return. The main strategy of affected domestic actors is clear and obvious: attack HACAs for overstepping their mandates, intervening in national sovereignty and turning into biased foreign actors. As the history of anticorruption agencies across the world has clearly demonstrated, corruption has no problems biting back (Arellano-­ Gault 2020; Dionisie and Checchi 2008; OECD 2008; Hellman et al. 2000). In the case of HACAs, their story has acquired a certain degree of predictability: confront early resistance, obstructionism, and opposition, achieve tangible results, trigger more intense resistance, obstructionism and opposition, and become weakened to the point of abandonment or significantly reduced functions. In sum, the autonomy HACAs need to attain effective results makes them extremely vulnerable and probably dooms them in the long run. The second lesson emerges from the first: HACAs require more robust protection mechanisms to make them resilient to political agents who have captured state institutions. These HACAs are subject to highly restrictive temporary mandates and jurisdictions, always at the edge of the knife

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ready to be tossed aside when accused of overstepping. This is not accidental, for this design emerged from complex negotiations where those same limitations were conditions for the required concessions as concerned national sovereignty. It is important to consider the cost and political exertion required of the principal international organizations. The UN and OAS spend enormous amounts of political capital to create and protect HACAs throughout their life cycle. Their failures and frictions can be highly costly for the multilateral organizations and perhaps even become unaffordable, both economical and politically, in certain contexts. Shifting focus from their design to their execution in practice, challenges do not subside. HACAs need alliances with non-state actors, a critical step that is not easy to attain in a systematic form. As Krasner and Risse stated, an appropriate institutional design is fundamental to the effectiveness of any external intervention in areas of limited statehood: “Only under stringent conditions is it possible to effectively build state institutions from the outside. These conditions include long-lasting resource commitments, the creation of highly institutionalized and legalized organizational structures, and compatible, if not identical, conceptions of legitimacy between the international community, national elites, and local communities” (Krasner and Risse 2014, 547). At the end of the day, design is but a single step. Effectiveness is not just a legal or technical problem, but a political one. It relies on finding a combination of incentives that is neither trivial nor evident. Add to this, the fact that technical and political capacities of an organization are perceived as substantive elements, which require organizational strength that can only be built over time. Resistance and obstructionism cannot be eliminated by design. They are the inevitable product of a HACA’s successful efforts in dismantling state capture. An important lesson would thus be clearly identifying the types of political support that will be required. Using the OAS Secretary General as the head of MACCIH may have increased its political weight in Honduras (and the governmental cost of not cooperating or attacking its efforts), but in an operative sense, it might have undeniable negative effects for the organization’s leadership hierarchy, coherence, and swift operation. In the case of CICIG, the support of the UN was more instrumental, for the Secretary General did not directly intervene in CICIG’s decision-making processes. CICIG became a clear and identifiable political actor, a unity that had the responsibility to investigate corrupt networks. This exposed CICIG to constant and relentless frontal attacks.

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Because the UN and OAS are effectively gambling their political capital with HACAs, as any organization, they must also make delicate cost-­ benefit analyses to judge the best use of their influence in international geopolitics (as well as their relationship with the targeted states). The third lesson emerging from hybrid anticorruption models involves the description and clarification of their mandates. The more specialized and focalized it is from the outset, the more effectively HACAs will operate, and the better results they will achieve. CICIG was not born as an HACA in the strictest sense. Its mandate was originally centered on the fight against impunity and CIACs, whose identification was complicated and ambiguous in the operational sense. The organization moved towards persecuting illicit economic and political networks, which led to more solid, technical, and neutral investigation processes. In contrast, MACCIH was born as a HACA under limited operative conditions. This led MACCIH to adopt a similar path in order to achieve substantive results: center its broad and diversified mandate of “active support” towards more concrete investigation and prosecution schemes with integrated work teams. MACCIH had a broad interpretation of the “active support” concept, applying it through the formation of integrated investigation teams with the Ministerio Público and directly influencing the selection of cases for investigation. This, in practice, broadened its margin of action without altering the original mandate. It is unquestionable that neither of these two organizations could resolve the problem of systemic corruption in the region by themselves (nor were they created to do so). The argument put forth in this study is that they were able to create effective counterweights, isolating the processes of investigation and criminal prosecution of instances of corruption while continuing to depend on the significance provided by their external principals. In contexts of systemic corruption, the presence of HACAs can be prolonged indefinitely (an option that is clearly inadequate and unsustainable for the host countries and funders). These HACAs have an exit strategy: if the government in question does not fulfill its obligations, UN or OAS may end the agreement. Nevertheless, such an exit would imply a very high level of conflict between the country and the international organization. Moreover, it is difficult to think any international organization would like to pay such a high political cost. The main idea is that these HACAs seek to strengthen state capacities to face corruption networks. How to do this and in what period of time are harder to define, though strengthening the Ministerio Público, special

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prosecutors, general attorney offices, and other governmental organizations are important part of their objectives. HACAs have not been able to institutionalize as international actors enjoying legitimacy within states in a way that could guarantee their support over time and pave the road for long term strategies (rather than reactive tactics to address their constant instability). They have not been able to institutionalize authority and governance schemes that can support political balances and counterweights. These strategies would not just allow for continuous support of the political system but would also grant them a broader margin of action to reduce strategic corruption, impunity, and state capture. It is clear that their disappearance may leave countries with the same dynamics of political infiltration and endemic corruption that they faced before intervention. Their experience, however, holds important lessons for the contextualization of international organizations in the international relations discipline and under the framework of international governance.

HACAs: A New Generation of International Organizations Against Corruption Both CICIG and MACCIH represent a new generation of international instruments shaping new logics of global governance. As hybrid organizations, they add to a growing list of governance instruments that include multiple actors such as corporations, non-governmental organizations, foundations, local governments, and civil society organizations (among others). Many of these forms of “hybrid governance” point towards a favorable role for the self-organized collective action of societies as an alternative to the governmental contribution of public goods (Börzel and Hüllen 2015; Scäferhoff et al. 2009). Others remain linked to state frameworks of authority, but are reframed in the form of complex regimes, global compacts, public-private associations, or diverse mechanisms of diverse interinstitutional entailments. International organizations, which have grown in numbers and complexity since the nineteenth century, give form to many of these exchange and relationship structures, and have also opened the door for the development of inter-organizational relationships and networks of transnational governance (Hale and Held 2011). HACAs are the natural offspring of this new generation of instruments for international organizations. They differ from traditional intergovernmental international organizations in that they have legal and operational capacities

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that allow them to act within states, supporting and strengthening them in the exercise of substantive government functions. At the same time, they are enabled with decision-making mechanisms and authority frameworks that allow for the spearheading of proposed legislative reforms, international norms and forms of supervision, which in tandem allow for successful attainment of the agreements embedded in their mandates. HACAs may operate within states, but they also introduce new rules to the game. To what extent this will transform traditional forms of authority or global governance is still uncertain but will doubtlessly open up new possibilities. As Anthony Lake stated, up until today, forms of authority have been centered in the state-centric model or restricted to the interstices of state power (Lake 2010, 587). According to Lake, global governance denotes the process of creating spaces of authority, and up until today, these include hierarchy, supranationalism, and private authority: “the set of actors that wield authority across national borders, including states that exercise authority over other states (hierarchy), international organizations that possess authority over member states (supranationalism), and non-governmental organizations and corporations that exert authority over communities located in two or more states (private authority)” (Lake 2010, 590). HACAs allow for authoritative relationships of international actors within a host nation. In this sense, they could be advancing Lake’s idea that governance implies the construction of instances of authority that go beyond the legal or public authority of a government (Lake 2010, 590). To the notions of hierarchical government, supranationalism, and private authority that Lake offers, the idea of international-national governance could be added, one that is exclusively managed by and for the domestic realm. HACAs, as hybrid organizations, can contribute to the research of new models of governance, networks and systems of negotiation, political contribution between states and international organizations, decision-making processes, and collective action between national and international actors (Kooiman 1993). Cases where HACAs are identified and subsequently analyzed may offer answers regarding the ways in which external actors can contribute to generating spaces of authority and institutional strengthening, as well as the effects and consequences those actions may have at the domestic level. Studying international organizations as powerful and authoritative bodies also implies a certain ontological stance that could readily be

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discussed with other disciplines that could offer thorough explanations concerning their forms of action, decision-making mechanisms, intraorganizational cultures, and dysfunctions, among many other dynamics (Biermann and Koops 2017, 2). The cases presented in this work offer evidence regarding their complex balances, the ways in which they interpreted and implemented their mandates, and the responsive strategies for contexts of uncertainty, resistance, and opposition. HACAs represent a new approach for international organizations from the international relations discipline, seen as a new research area where a separation between the domestic and the international (or between anarchy and hierarchy) no longer exists (Rosenau and Czempiel 1992). This is similar to the study of international organizations as autonomous, self-­ managed, and proactive actors (Oestreich 2012, 14) that are no longer aligned with the instrumental and passive notion where they can only be programmed to serve the states. On the other hand, as hybrid anticorruption agencies, HACAs are also a source of innovations, since they offer an alternative to national anticorruption agencies that have been captured by the states. Thanks to their international component and full financial autonomy, HACAs have a broader margin of action, and, in theory, could bring independence and depolarization to the processes of investigation and criminal prosecution. In contrast, their national component gives them first-hand knowledge over the political, administrative, and cultural dynamics in which they are inserted, lending them legitimacy and a solid framework from which to establish collaborative relationships. One of the most important lessons from this exercise is that hybrid anticorruption agencies are difficult to sustain over time. Beyond their innovative qualities, their design is fundamentally risky in practice for they must cooperate with actors that might oppose and resist their functioning as they fear losing their privileges or suffering consequences of their abuses of power. Curiously, this contradiction generates frequent instances of crisis and uncertainty. The more successful an organization in the fight against corruption, the more opposition, resistance, and obstructionism it will face. At the same time, an organization cannot allow itself to become irrelevant or not achieve results for that would also lead to immediate abandonment from its principals and funders. An organizational reading of the lessons gained from these HACAs would take notice of how they live under constant risk and uncertainty,

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pressured into reaching results and remaining viable, and generating secondary effects by example. They are organizations that demonstrate that the effects of corruption could be made visible, that it is possible to conduct neutral, depoliticized, and technically solid prosecutions, that they can bring individuals who abuse their posts to enrich themselves or their families to justice. However, they cannot reach a true level of institutionalization or solidify independent processes of investigation and prosecution (at least not without the backing of international actors). The recent disappearance of CICIG as a result of the refusal of the Guatemalan government to renovate its mandate clearly demonstrates these lessons. Its operational, investigatory, and consultative success was not enough against the response from powerful networks of corruption. It was also not enough to resist accusations that it was violating Guatemala’s sovereignty or overstepping its mandate (or the supposed politization of CICIG that was brought on as accusation of its foremost detractors). Ultimately, its demise could encourage us to continue seeking and debating ways in which international organizations may achieve legitimate capacities of action within nations, assisting in situations of extreme capture and corruption. CICIG is clear evidence that new diplomatic and political negotiation strategies are urgent. The CICIG success as an experiment is undeniable, despite its recent disappearance. However, there might be another argument that point to a dilemma: in the end of the day, these hybrid organizations may actually produce an unexpected outcome; weakening the governments they seek to help. In effect, since HACAs face several challenges in restricted periods of time, they have set up ambitious processes of institution building in the nation in question. These efforts of institution building, nevertheless, are quite complex and require prolonged periods of time. In fact, this effort may be indispensable, but one unlikely to yield concrete outcomes in the short term. HACAs need to show tangible results in short periods of time if they want to avoid funders and societies at large becoming desperate and disappointed with the failure of otherwise well-intended efforts. This could produce even worse results: weakening of the governments in question and perhaps more cynicism regarding the possibilities to reduce and control corruption and capture in societies so in need of concrete results. These are the paradoxes that international interventions must confront with political and organizational innovations if they intend to contribute to a new global and regional governance in matters of corruption.

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Note 1. “A consolidated state enjoys the privileges of international legal sovereignty, including recognition, the right to enter into treaties, and to join international organizations. It is a full “Westphalian/Vattelian” sovereign: Domestic authority structures are autonomously determined. It exercises effective domestic sovereignty, what we term here statehood, that is, the monopoly over the legitimate use of force and the ability to successfully make, implement, and enforce rules and regulations across all policy arenas within its territory”. Krasner, Stephen and Thomas Risse. 2014. “External Actors, State-Building, and Service Provision in Areas of Limited Statehood: Introduction.” Governance: An International Journal of Policy, Administration and Institutions 27 (4), 545.

References American University Center for Latin American and Latino Studies. 2018. The MACCIH Monitor. Análisis independiente de la Misión de Apoyo contra la Corrupción y la Impunidad en Honduras (MACCIH), de la Organización de Estados Americanos, enero 9. https://www.american.edu/centers/latin-american-latino-studies/upload/Edici%C3%B3n-Especial-MACCIH-Monitor.pdf. Arellano-Gault, David. 2020. Corruption in Latin America. New York: Routledge. Biermann, Rafael, and Joachim Koops. 2017. Studying Relations Among International Organizations in World Politics: Core Concepts and Challenges. In The Palgrave Handbook of Inter-Organizational Relations in World Politics, ed. Rafael Biermann and Joachim Kopps, 1–47. London: Palgrave Macmillan. Börzel, Tanja, and Vera Van Hüllen, eds. 2015. Governance Transfer by Regional Organizations. Patching Together a Global Script. London: Palgrave Macmillan. CICIG (Comisión Internacional contra la Impunidad en Guatemala). 2017–2018. Décimo primer Informe de Labores 2017–2018. https://www.cicig.org/wpcontent/uploads/2018/11/XI_Informe_Anual_CICIG_2018.pdf. Dionisie, Dan and Francesco Checchi. 2008. Corruption and Anti-Corruption Agencies in Eastern Europe and the CIS: A Practitioners’ Experience. http://www.ancorage-net.org/content/documents/dionisie-checchicorruption_in_ee.pdf. Hale, Thomas, and David Held, eds. 2011. Handbook of Transnational Governance: Institutions and Innovations. Cambridge: Polity Press. Hellman, Joel, Geraint Jones, and Daniel Kaufmann. 2000. Seize the State, Seize the Day. State Capture, Corruption and Influence in Transition. Policy Research Working Paper 2444. Washington DC: World Bank Institute. Krasner, Stephen. 1999. Sovereignty: Organized Hypocrisy. Princeton: Princeton University Press.

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Krasner, Stephen, and Thomas Risse. 2014. External Actors, State-Building, and Service Provision in Areas of Limited Statehood: Introduction. Governance: An International Journal of Policy, Administration and Institutions 27 (4): 545–567. Kooiman, Jan. 1993. Modern Governance. New Government-Society Interactions. London: Sage. Lake, David. 2010. Rightful Rules: Authority, Order, and the Foundations of Global Governance. International Studies Quarterly 54 (3): 587–613. Lake, David, and Christopher Fariss. 2014. Why International Trusteeship Fails: The Politics of External Authority in Areas of Limited Statehood. Governance: An International Journal of Policy, Administration and Institutions 27 (4): 569–587. Matanock, Aila. 2014. Governance Delegation Agreements: Shared Sovereignty as a Substitute for Limited Statehood. Governance: An International Journal of Policy, Administration and Institutions 27 (4): 589–612. OECD. 2008. Specialized Anti-corruption Institutions. Review of Models. Paris: OCDE. Oestreich, Joel, ed. 2012. International Organizations as Self-Directed Actors. A Framework for Analysis. New York: Routledge. Reinalda, Bob, and Bertjan Verbeek. 2005. Autonomous Policy Making by International Organizations. London and New  York: Routledge/ECPS Studies in European Political Science. Rosenau, James, and Ernst-Otto Czempiel. 1992. Governance without Government: Order and Change in World Politics. Cambridge: Cambridge University Press. Schäferhoff, Marco, Sabine Campe, and Christopher Kaan. 2009. Transnational Public-Private Partnerships in International Relations: Making Sense of Concepts, Research Frameworks and Results. International Studies Review 11 (3): 451–474. TI (Transparency International). 2017. People and Corruption: Citizens’ Voices from around the World. World Corruption Barometer. https://www.transparency.org/news/feature/global_cor r uption_ barometer_citizens_voices_from_around_the_world. WOLA (Wash Office on Latin America). 2015. La CICIG: Un instrumento innovador contra redes criminales y para el fortalecimiento del Estado de Derecho. Washington, DC: WOLA. https://www.wola.org/sites/default/ files/CICIG%203.25.pdf.

Index1

A Accountability, ix, xi, 2, 30, 34, 35, 46, 73, 74, 101, 123 Administrative corruption, 1, 34, 36, 82–84, 88 Agency, 7, 8, 13n1, 47, 52, 61, 82–87, 105, 125 Aldana, Thelma, 87, 89n1, 120 Almagro, Luis, 99, 105 Anti-corruption anticorruption Instruments, 11, 13 anticorruption systems, 3, 10, 39n10, 94, 101, 103, 108, 113, 125 (see also Anticorruption models) Convention on Combating Bribery of Public Officials in International Business Transactions (OECD-AntiBribery Convention), 4

Inter-American Convention against Corruption (IACAC), vii, 3, 39n10, 97, 115n4 United Nations Convention against Corruption (UNCAC), vii, 3, 26–27, 39n10, 101 Anti-Corruption Agency (ACA) Armenian Anticorruption Council (AAC), 37 Corrupt Practices Investigation Bureau in Singapore (CPIB), 36 Corruption Prevention and Combating Bureau of Latvia (KNAB), 37 Hong Kong Independent Commission Against Corruption (ICAC), 36 Moldovan Centre for Combating Economic Crime and Corruption (CCEC), 37

 Note: Page numbers followed by ‘n’ refer to notes.

1

© The Author(s) 2020 L. Zamudio-González, International Intervention Instruments against Corruption in Central America, Governance, Development, and Social Inclusion in Latin America, https://doi.org/10.1007/978-3-030-40878-7

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INDEX

Anticorruption models, 130 Autonomy, ix, x, 5–8, 10–13, 21, 23, 24, 35–38, 46, 53, 55, 57, 68, 73–77, 79, 88, 95, 96, 103–106, 113, 114, 122, 125, 127, 128, 133 B Baldetti, Roxana, 83 Berger, Oscar, 71 Bribery, vii, viii, 25, 32, 83, 84 See also Embezzlement; Fraud Bureaucracies, 12, 47, 57–59, 77 Bureaucratic constructivist theory, 47, 52 dysfunction, 9 C Castresana, Carlos, 69, 70, 77–80, 83, 89n4 Central America, 11, 12, 120, 124 Chambers for War Crimes in the Courts of Bosnia and Herzegovina, 33 CICIACS International Commission for the Investigation of Illegal Bodies and Clandestine Security Groups, 56, 71, 72, 123 CICIG International Commission against Impunity in Guatemala Commissioner of, 61, 70, 75 functions of, 38 Illicit Economic and Political Networks (IEPN), 61, 82, 83 La Línea case, 79 objectives of, 68, 73, 79, 80, 84, 86, 87, 94 organization structure of, 98 See also Anti-Corruption Agency (ACA) Colom, Álvaro, 79

Convention on Combating Bribery of Public Officials in International Business Transactions (OECDAnti-­Bribery Convention), 4 Corrupt acts bribery, viii, 25, 32, 83, 84 conflict of interest, 25, 38n4 embezzlement, 25 fraud, 25 Corruption corruption conceptualization, 24, 27 corruption networks, 37, 68, 88, 102, 104, 105, 107, 109, 128, 130 systemic corruption, 22, 38n1, 87, 130 See also Corrupt acts Corrupt Practices Investigation Bureau in Singapore (CPIB), 36 Criminality, 2, 3, 23, 34, 39n7, 86, 87, 120 Criminality networks, 31, 69, 81, 82, 84, 120 Criminalized state, 31 Criminal power structures, 69 See also Criminality networks Criminal prosecution, ix, 13, 20, 36, 38, 72, 94, 120, 122–125, 127, 130, 133 Criminal state, 31, 39n7 See also Criminalized state; Mafia state Croatian State Prosecutor’s Office for the Suppression of Corruption and Organized Crime (USKOK), 37 D Dall’ Anese, Francisco, 77, 80, 81, 89n4 Delegation of authority, 53 Design and execution, 9, 23, 46

 INDEX 

139

Domínguez, Jacobo, 105 Drug trafficking, 39n8

Guimarâes, Luiz Antonio, 106 Guterres, António, 2

E Embezzlement, 84, 111 See also Bribery; Fraud European Union (EU), 13n3, 35, 70, 76 EU Rule of Law Mission in Kosovo (EULEX), 13n3 Extraordinary Chambers in the Courts of Cambodia (ECCC), 33 Extremism, 2

H Hernández, Juan Orlando, 96, 105 Honduras, ix–xi, 4, 8, 10, 13, 32, 61, 80, 93–114, 115n5, 120, 127, 129 Honduras government Attorney General’s Office, 102, 105, 106 Court of Appeals in matters of corruption, 110 Supreme Court, 120 Hybrid Anti-Corruption Agency (HACA) active support, 130 autonomy of, ix, x, 5, 6, 13, 35–37, 46, 53, 55, 57, 128, 133 decision-making process of, 10, 13, 132 design and practice, 10 (see also Design and execution) learning of, 9, 34, 128 legal authority of, 20 lessons of, 11, 23, 127–131, 133 operational capacity of, 131 resistance and opposition, 5, 133 (see also Obstructionism) Hybridization, 12, 32, 34, 35, 62, 74 Hybrid organization hybrid peacekeeping operations, 35 hybrid tribunals, 20, 32–34 See also Hybrid organization models Hybrid organization modelsm, 121

F Food and Agriculture Organization of the United Nations (FAO), 51 Fragile state, 31 Fraud, 25, 27, 84, 89n1, 110, 111 See also Bribery; Embezzlement Functionalism theory, 51 G Gerardi, Juan, 70 Global threat, 2 Governance authoritative forms of, 10, 123 frameworks of, 10, 131 Government bad government, 30 good government, 30 Grand corruption, 38n3 Guatemala, viii–x, 8, 13, 32, 68–71, 73–75, 84, 87, 88, 89n2, 98, 104, 107, 120, 127, 134 Guatemala government Attorney General’s Office, 125 Court of Constitutionality, 71 National Civil Police, 71, 72, 75 prosecutor, xi, 73, 79–81, 89n1, 89n4, 98, 113, 120, 124 Guiammattei, Alejandro, 87

I Illegal Corps and ClandestineSecurity Apparatus (CIACS), 69, 70, 72, 75, 81–83, 130 Illicit Economic and Political Networks (IEPN), 61, 82, 83, 130

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Illicit electoral financing, 89n1 Illicit enrichment, 25, 82 Impunity, xi, 5, 10, 12, 20, 68, 69, 72, 77, 80, 82, 83, 86, 88, 90n9, 102, 122, 130, 131 Independent Commission against Corruption in Hong Kong (ICAC), 36 Independent Joint Anti-Corruption Monitoring and Evaluation Committee in Afghanistan (MEC), 39n9 Inter-American Convention against Corruption (IACAC), vii, 3, 39n10, 97, 115n4 International Atomic Energy Agency (IAEA), 50 International Commission against Impunity in Guatemala (CICIG), ix–xi, 4, 10, 11, 13, 13n3, 19, 20, 34, 38, 47, 55, 56, 61, 62, 67–88, 89n1, 89n4, 89n7, 89n8, 90n9, 90n10, 94–98, 100–104, 107, 112–114, 119–134 See also CICIG International Commission against Impunity in Guatemala International Commission for the Investigation of Illegal Bodies and Clandestine Security Groups (CICIACS), see CICIACS International Commission for the Investigation of Illegal Bodies and Clandestine Security Groups International Criminal Court (ICC), 55 International Criminal Tribunal for Rwanda (ICTR), 32 International Criminal Tribunal for the former Yugoslavia (ICTY), 32 International organizations (IOs) interinstitutional cooperation, 6, 35 intraorganizational conflict, 61 interorganizational relationships, 131

International relations, see International relationships International relationships, x, 7, 12, 13, 45, 47–55, 62n1, 122, 131, 133 International Relations theories, 54, 55 Investigation, ix, x, 2, 4–7, 11, 13, 20–22, 33, 36–38, 39n9, 46, 55–57, 68, 71–73, 75, 78, 79, 81–83, 86, 94–96, 98–100, 103, 104, 106–110, 112–114, 120–124, 126–128, 130, 133, 134 J Jímenez, Juan, 105, 106, 108, 113 Judicial corruption, 84, 90n9 L La Línea case, 79, 82, 83, 98 Laundering, viii, 68, 89n1 See also Money laundering Limited statehood, 10, 122, 129 M Mafia state, 3, 31 See also Criminal state; Criminalized state Mandate, ix–xi, 4–6, 9–13, 20–23, 34, 36, 37, 39n8, 39n9, 46–48, 52, 54, 56, 57, 60–62, 68–73, 75–79, 81, 82, 87, 88, 89n2, 94–96, 99–104, 106–109, 113, 114, 120, 124, 125, 128, 130, 132–134 Metaorganization, 21 Ministerio Público (Spanish), 5, 38, 71–73, 79, 80, 94, 95, 100, 102, 106, 108, 109, 111–113, 114n1, 115n3, 124, 125, 127, 130

 INDEX 

Mission to Support the Fight against Corruption and Impunity in Honduras (MACCIH), ix–xi, 4, 10, 11, 13, 13n3, 19, 38, 47, 56, 61, 93–114, 115n3, 119–134 Moldovan Centre for Combating Economic Crime and Corruption (CCEC), 37 Money laundering, viii, 68, 89n1 Morales, Jimmy, 68, 87, 89n1, 120 N The National Anti-Corruption Directorate in Romania (DNA), 36, 37 Neo-functionalism theory, 51 New Institutional Economics (NIE), 28, 29 North Atlantic Treaty Organization (NATO), 35 O The OAS Follow-Up Mechanism for the Implementation of the Inter-American Convention against Corruption (MESICIC), 97, 101, 102, 115n4, 115n5 Obstructionism, x, 68, 76–82, 95, 109–114, 124, 128, 129, 133 See also Hybrid Anti-Corruption Agency (HACA), resistance and opposition Open Society Justice Initiative (OSJI), 3, 71, 77, 81, 89n2 Organizational behavior organizational change, 7 organizational culture, 51, 58 organizational innovation, 4, 8, 33, 134 organizational structure, 125, 129 Organization for Economic Co-operation and Development (OECD), vii, 3, 4, 24, 36, 37, 128

141

Organization of American States (OAS), ix, xi, 4, 8, 11, 55, 93, 95, 97–100, 106–108, 115n3, 115n4, 124, 126, 129, 130 Organized corruption, 123 P Paz y Paz, Claudia, 80 Peacekeeping operation, 34, 35 Pérez, Otto, 83 Political capture, 12, 24–32, 36, 83 See also State capture Political corruption, 5, 11, 12, 20, 24–25, 38n3, 69, 72, 83, 84, 87–88, 96, 111 Portillo, Alfonso, 82, 84 Post-conflict institutional building, 34 Preventive and coordination agencies, 37–38 Principal, 8, 24, 29, 37, 53–57, 76, 78, 80, 84, 115n4, 121, 125, 128–130, 133 Principal-agent theory agency slack, 54 heterogeneity of preferences, 8, 54, 55 opportunism, 49 shirking, 54 slippage, 54 Private prosecutor, 75, 78, 80, 81, 89n6, 113, 124 Public corruption, vii, 27, 110 Q Querellante adhesivo, see Private prosecutor R Regime, 4, 10, 36, 48, 50, 63n4, 131 Regime theory, 50 Regulation 64 Panels in Kosovo, 33 Ríos Montt, Efraín, 81, 82

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INDEX

Rosenberg, Rodrigo, 79 Rule of law, x, 23, 30, 67, 70, 80, 86, 88 S Sovereignty, x, xi, 21, 22, 32, 46, 55, 74, 88, 104, 122, 123, 128, 129, 135n1 Special Attorney’s Unit against Impunity and Corruption in Honduras (UFECIC), 80, 95, 106, 107, 109, 112, 113, 120, 126, 127 Special Court of Sierra Leone (SCSL), 33 Special Investigation Service of the Republic of Lithuania (STT), 37 Special Panels for Serious Crimes (East Timor), 33 Special Prosecutor’s Office for CICIG (UEFAC), 80, 126 State capture, 1–13, 23–25, 30–32, 38, 69, 80, 93, 122, 129, 131 See also Political capture Systemic corruption, 22, 38n1, 87, 130 T Terrorism, 2 Torres, Sandra, 79, 87 Trading of influence, 25 Transparency, vii–ix, xi, 2, 30 Transparency International (TI), 27, 30, 31, 39n7, 70, 96, 120 U UN African Union Hybrid Operation in Darfur (UNAMID), 35 UN Children’s Fund (UNICEF), 51

UN Convention against Corruption (UNCAC), vii, 3, 26–27, 39n10, 101 UN Convention against Transnational Organized Crime (UNTOC), 3 UN Development Programme (UNDP), 24, 76 UN Educational, Scientific and Cultural Organization (UNESCO), 55 UN Environment Programme (UNEP), 51 UN Food and Agriculture Organization (FAO), 51 UN High Commissioner for Refugees (UNHCR), 50, 51 UN Historical Clarification Commission (HCC), 70 United Nations (UN) Secretary General, 2, 33, 54, 74, 75, 125 UN Office on Drugs and Crime (UNODC), 69 UN Provisional Administration in Kosovo (UNMIK), 39n8 UN Stabilization Mission in Haiti (MINUSTAH), 39n8 UN Verification Mission in Guatemala (MINUGUA), 70, 98 V Velásquez, Iván, 81–84, 89n1, 120 Vulnerability, ix, 5, 6, 24, 38 W The War Crimes Chambers in the Courts of Bosnia and Herzegovina (WCC), 33 World Bank (WB), 2, 12, 13n1, 27, 30, 39n5 World Trade Organization (WTO), 50