To address the threat of kleptocratic governance in the region, the American Bar Association Center for Human Rights (CHR) and the Rule of Law Initiative (ROLI) established a diverse, inter-disciplinary Expert Working Group to examine lessons learned from past efforts and recommend a course of action. Drawing on the experience of anti-corruption initiatives around the world, the Working Group identified short, medium, and long-term strategies to challenge kleptocratic governance in the region and begin the process of establishing the rule of law.
The Working Group found that, in all three countries, to varying degrees, State institutions had been captured by corrupt networks. These corrupt networks include monopolistic business enterprises with a record of engaging in coercion and collusion, illegal armed groups with a past record of engaging in serious human rights abuses, organized criminal structures engaged in narcotics trafficking and smuggling operations, and past and current government officials. To address these powerful and resilient entities, the international community—in collaboration with local justice sector personnel and civil society leaders—needs to support investigations and prosecutions of those who are demonstrably committed to the corrupt system, while also providing incentives to those with a stated commitment to reform and encouraging the emergence of new actors in the private sector to challenge monopolistic and corrupt practices.
The members of the Working Group agreed that there is an urgent need for the international community to focus attention on the protection of at-risk justice sector personnel and anti-corruption advocates. Given recent attempts by corrupt actors in all three countries to consolidate control, undermine the independence of the justice sector, and restrict the operations of civil society, there is an imminent risk that judges, prosecutors, advocates, and journalists who have successfully investigated corruption will be forced into exile or to cease their activities as a result of direct physical threats or manufactured criminal prosecution.
The Working Group recommends the use of targeted financial sanctions, restrictions on support from international financial institutions, and enhanced due diligence requirements for foreign direct investments to incentivize rule of law reforms and protect pockets of independence in the justice sector. In addition, it is essential that the international community support reform of existing procedures to appoint high court judges and justice sector personnel to ensure that such positions are filled on the basis of merit.
With regards to the need for technical assistance, the Working Group concluded that such assistance was effective to the extent that it helped create pockets of independence within the justice sector. The Working Group recommended that any assistance should be informed by a realistic political economy assessment that takes into account the capture of the justice sector by illicit networks.
With regards to the need for ongoing international investigative capacity, the Working Group concluded that technical assistance alone would not be sufficient to overcome the consolidation of control by illicit networks and the asymmetry in power between these networks and civil society. It therefore concluded that continued international investigative capacity was still needed.
In conclusion, the Working Group found that there is a limited window of opportunity to reverse the steep backsliding that is currently underway in most of the region, but it will take concerted action by the international community. The international community must work in a coordinated manner to adjust the incentive structure for private actors that have captured State institutions, through both accountability measures and economic incentives and disincentives. Those with a demonstrated record of repeated and egregious misconduct should be investigated, prosecuted, and/or sanctioned. For those expressing a willingness to reform, access to financial markets and loans should be conditioned on a demonstrated record of reform. Emerging small and medium business enterprises with a record of ethical conduct should be rewarded. While investigations of corrupt networks and support from the international community may not alone be sufficient to address State capture, it may help preserve pockets of independence in the justice sector that could, in the long term and in combination with broader efforts, create political space for deeper reforms. The new “U.S. Strategy to Counter Corruption” reflects the welcome priority given anti-corruption by the Biden Administration and contributes to a series of new specific actions proposed to implement that strategy both domestically and internationally. Whether they will significantly affect the dangerous anti-democratic trend in the Northern Triangle remains the critical question.