What rational person would be against increasing prosperity, fighting corruption, strengthening democratic governance, improving citizen security, or promoting inclusive development and economic growth? All to prevent more people from Central America’s Northern Triangle from migrating to the United States? Well, no one. But some people frown in disapproval when they hear that these are some of the objectives of a new law passed by the U.S. Congress, which has already landed on President Joe Biden’s desk. Yet others have timidly expressed a small measure of satisfaction and hope.
H.R. 2615, also known as the United States-Northern Triangle Enhanced Engagement Act was passed by the U.S. Congress on December 22, 2020, and is often called the “Engel List,” after the bill’s sponsor, Representative Eliot L. Engel, chairperson of the House of Representatives Foreign Affairs Committee
President Biden must formally and publicly present the law to Congress within 180 days of its enactment and annually thereafter. The list must include individuals that the president has identified as corrupt and undemocratic actors from El Salvador, Guatemala and Honduras. Individuals on this list will be subject to sanctions that include the cancellation or denial of a U.S. visa, as well as the cancellation of parole eligibility in the United States and any immigration benefits.
Much of the money from corruption and drug trafficking in Honduras is laundered in the U.S., and many of the companies with regional business alliances are located there. Being on the list is also a status issue, of course, especially if such a list is made public.
The main difference between the Engel List and Magnitsky List is that the latter focuses on public officials involved in human rights violations. Although the Magnitsky List has sometimes included people accused of corruption, it was not originally designed for that purpose and therefore has some limitations. The Engel List is innovative in that it focuses on corruption and anti-democratic activity within and outside the United States, and specifically concentrates on the three countries in Central America’s Northern Triangle.
In Central America, the Engel List is the most widely known provision of H.R. 2615, and is one of many reports that the U.S. president must submit to Congress by law. However, it is not the sole focus of H.R. 2615.
The final version of the bill passed by Congress has 14 sections, ten of which dictate components and actions that the new administration must implement as part of its Northern Triangle policy. The State Department, in coordination with the Agency for International Development (USAID) is tasked with providing the information required by various congressional committees. This information includes reports analyzing the current issues pertaining to the three Central American countries, as well as progress reports on the implementation of H.R. 2615. The first of these reports is due 180 days after the law’s enactment.
Migration, growth and inclusive development
Section 2 of the law stipulates the creation of a publicly available report on the main drivers of migration to the United States. The report must include data disaggregated by municipality, age, and gender for each Northern Triangle country, pertaining to more than 25 dimensions of this type of migration. However, this section emphasizes factors such as gender-based violence, extrajudicial executions, torture, forced disappearances and arbitrary detentions allegedly committed by or in complicity with security forces, in addition to the abuses committed by criminal organizations.
Section 2 also requires information on the effectiveness of anti-corruption strategies implemented through bilateral and multilateral assistance. It requires an assessment of the impact of corruption on migration, including drug trafficking and illegal campaign financing, as well as a list of public officials known to participate in or facilitate corruption.
An innovative aspect of this law is that it considers corruption to be a driver of migration, a departure from the widespread opinion that poverty and violence are the only drivers. Although corruption does not have a direct effect on migration, its damaging impact on living conditions does. Fragile public services and infrastructure, barriers to social mobility, impunity, unfair competition, loss of institutional legitimacy, mistrust of public institutions, and the perversion of democratic processes are among the many structural problems that benefit a few at the expense of many. At long last a spotlight will shine on the corrupt political and business elites, and on their culpability in driving thousands of people out of their countries. These Northern Triangle elites are not only guilty of corruption, but are also responsible for the system of impunity that protects them.
Section 3 requires the Secretary of State to promote inclusive economic growth and development in the region. While everyone agrees that all the provisions of this law are needed to overcome underdevelopment, there is no mention here of corruption’s role in perpetuating the exclusionary economic and political institutions that have allowed generations of corrupt networks to feed on underdevelopment. This is a sensitive issue because the economic elites in these countries are long-time U.S. trading partners.
Many were key U.S. allies in the anti-communism and counterinsurgency campaigns of the late 20th century. Many are also well-heeled shareholders in illegal drug and money laundering operations. Yet they wield real economic and political power in these countries, and remain U.S. allies in specific areas. Clearly this is not an easy problem to solve, and there are not many viable ways of transforming the economic models in these countries without precipitating a complete collapse.
Corruption, democracy and security
Section 4 presents actions to combat corruption in the Northern Triangle. The Secretary of State is directed to strengthen national judicial systems and attorneys general through technical assistance, support for government transparency measures, and protection of public officials. The section includes technical assistance to financial institutions to identify money laundering and other financial crimes, and for breaking up the financial holdings of organized criminal syndicates. The Secretary of State must present a five-year strategy to combat corruption in the region within 180 days of the law’s enactment.
The Northern Triangle countries have established special prosecutorial offices in the past. Guatemala established a Special Prosecutor’s Office Against Impunity (FECI by its Spanish acronym), and Honduras established a Specialized Prosecutor’s Unit Against Corruption (UFERCO by its Spanish Acronym), both of which emerged from international efforts to improve the investigative capabilities of these countries. These special prosecutorial offices are in dire need of help since their own governments are now dismantling them, and launching frequent attacks on their achievements and personnel. MACCIH (Mission to Support the Fight against Corruption and Impunity in Honduras) and CICIG (International Commission Against Impunity), are two hybrid international-domestic agencies backed by the United Nations and the Organization of American States, respectively, that helped create these special prosecutorial offices. But President Juan Orlando Hernández in Honduras and former President Jimmy Morales in Guatemala put an end to these commissions, leaving the special prosecutorial offices without the political protection provided by international support. The fox cannot be trusted to guard the chicken coop in these countries, and the international spotlight has been the only thing that has made any headway against corruption. The overused tactic of trumpeting national pride and sovereignty is useless and even counterproductive.
Section 4 also requires the appointment of a senior rule of law advisor in the Bureau of Western Hemisphere Affairs of the Department of State who shall lead “diplomatic engagement” (read arm-twisting) with the Northern Triangle countries, and drive the actions and strategies mandated by law.
In the past, figures like the senior rule of law advisor ran the Central American counterinsurgency wars and shepherded military rulers during the region’s bloodiest armed conflicts. But these figures also promoted transitions to democracy and later spearheaded the war on drugs.
Corruption has the advantage of not being an ideological issue. Left- and right-wing governments in Central America are equally prone to corruption. Anticorruption support to Central America was not expected during Trump administration, because it would be clearly a case of the fox guarding the chicken coop. That’s not to say that Democratic governments are less corrupt than Republican ones. It was because of Trump, the quintessential easy money guy, unscrupulous and immoral, shamelessly hiding behind a facade of Christian values and patriotism.
These presidents and their obviously partisan attorneys general who enthusiastically foster impunity, collaborate with other well-known facilitators of corruption who are not public officials. They are the untouchables who pass through the revolving door of the public, private, national and international domains as they please.
Section 5 of the law details actions to strengthen democratic institutions in the Northern Triangle. This is a major challenge today considering that democracy is struggling to survive here. Honduras is an autocracy and in El Salvador, Nayib Bukele seems bent on undermining the foundations of a fragile but stable democracy. His egomaniacal, populist rhetoric that relentlessly demeans any form of opposition has deepened the polarization inherited from the decades-old Salvadoran civil war. Bukele recently disparaged the annual commemoration of the signing of the peace accords that ended the civil war in yet another public statement inciting hatred. This was a significant setback to the slow and difficult process of national reconciliation. In Guatemala, Giammattei is evidently incapable of challenging the mafia that controls the Congress. Thus, his lack of transparency is widely viewed as complicity.
International aid given with the objective of strengthening democracies poses a dangerous paradox, as it can reinforce the very institutions that debilitate a country’s democracy. While the three Northern Triangle countries exhibit the appearance of democracies in the formal structure and processes of their governments, these attributes are utterly superficial. This is not because their institutional designs are flawed or defective, but because of the powerful political and business networks that have been very successful in garnering unwarranted and illegal rewards through a symbiosis that combines the formal structures of democratic institutions with anti-democratic, patrimonialist practices.
The measures in Section 5 for fighting corruption should result in a stronger democracy, if it is recognized that simply removing the corrupt actors is insufficient. The system itself must be transformed so that it can protect itself from future infiltration by the corrupt. That is a democracy – a system that democratically protects itself from those who try to undermine it. Any U.S. efforts to that end could be stymied by the political and economic elites who are the most undemocratic citizens of all in countries that have never experienced or benefited from a democracy that goes beyond a simple electoral process.
Section 6 law presents measures to improve security in the Northern Triangle. The United States has a long and tortuous history of providing security-related foreign aid. As in the past, this new law establishes training and technical support to security forces. A strategy for the security-related aid must also be presented within 180 days of the law’s enactment.
It is noteworthy that the law requires the Secretary of State to implement the Central America Regional Security Initiative (CARSI) as a priority. Between 2008 and 2011, the CARSI had a total budget of US$361.5 million; in 2012 its budget rose to US$105 million. The outcomes of this initiative were not publicized, and some studies point to the lack of impact evaluations for most programs as a major problem. Another shortcoming cited was the ineffectiveness of the Central American Integration System (Sistema de Integración Centroamericana – SICA), which was responsible for the regional coordination and implementation of CARSI projects. SICA lacks implementation and execution capabilities, and its coordination efforts are hindered by technical factors and resistance by national political authorities. Thus, the State Department faces the dual challenge of overhauling the CARSI initiative and finding better implementation partners.
A paradigm shift is needed in this area. As seen in the challenge of strengthening democracies, public security institutions, especially the police, are ultimately dependent on political leadership. When political leadership is prone to repression and alliances with criminal elements and corruption, no amount of international support will be able to mitigate its debilitating, negative effects on the populace.
The U.S. has not shifted much towards a social and political approach to the problem. A social approach is needed because the violence in these countries is an expression of deprivation, but a deprivation of inequality not poverty. This includes gang extortion and violence, which have proven to the point of exhaustion that a repressive approach does not work. A political approach to the security problem must recognize that these criminal groups have close ties with the political system. In El Salvador, political parties and President Bukele have been caught negotiating with the gangs. In Honduras, there is clear evidence that drug trafficking has infiltrated the core of the National Party and its current leader, President Hernandez. Many congressional representatives operate like local chieftains in regions of Honduras dominated by drug trafficking and extractive industries. There is no way to improve public security without defeating the political-criminal nexus. The United States must know this to be true, but is clearly limited in how it can engage without eliciting protests of heavy-handed interventionism.
Funding and disbursement conditions
Section 7 authorizes the appropriation of US$577 million for fiscal year 2020 to carry out the United States Strategy for Engagement in Central America. This amount will be allocated as follows: US$490 million for the Northern Triangle countries, US$10 million for the Inter-American Foundation to address the causes of migration, and US$20 million for migration issues specific to women and children.
Section 8 establishes the conditions for making the funding and support available to the Northern Triangle countries. These conditions are reminiscent of those in former President Obama’s Partnership for Prosperity, which were never fulfilled by the beneficiary countries. This section of the law establishes the following 14 conditions:
- Informing its citizens of the dangers of the journey to the southwest border of the United States.
- Combating all human smuggling and trafficking entities.
- Countering the trafficking of illicit drugs, firearms, wildlife, natural resources, and other contraband.
- Combating corruption, including investigating and prosecuting current and former government officials credibly alleged to be corrupt.
- Implementing reforms, policies, and programs to increase transparency and strengthen public institutions and the rule of law.
- Countering the activities of criminal gangs, drug traffickers, and transnational criminal organizations.
- Ensuring that human rights are respected by national security forces.
- Investigating and prosecuting in the civilian justice system government personnel who are credibly alleged to have violated human rights.
- Cooperating with commissions against corruption and impunity and with regional human rights entities.
- Supporting programs to reduce poverty, expand education and vocational training for at-risk youth, create jobs, and promote equitable economic growth, particularly in areas contributing to large numbers of migrants.
- Creating a professional, accountable civilian police force and ending the role of the military in internal policing.
- Protecting the right of political opposition parties and other members of civil society to operate without interference.
- Implementing tax reforms, ensuring property rights, and supporting increased private investment in the region.
- Resolving commercial disputes.
As before, no rational advocate of democracy would object to a president complying with these 14 conditions. But right now, they can’t comply with a single condition, except perhaps in photo opportunities and statements to the media. The problem with fulfilling many of these conditions is that they threaten the very existence of the political-criminal nexus and patrimonial model that sustains the political and economic systems of the Northern Triangle countries.
The law stipulates that 50% of the funding will be retained until the Secretary of State certifies that the beneficiary countries comply with these conditions. However, it does not detail any requirements regarding the degree of compliance, the number of conditions that must be complied with, and most importantly, how they are complied with. Therein lies the problem.
Juan Orlando Hernández is an autocrat accused (by U.S. prosecutors) of having links to drug traffickers, but he managed to ally Honduras with former President Trump through some evangelical churches and private companies that supported him. Jimmy Morales intentionally stalled Guatemala’s battle against corruption, but he was also part of Trump’s political-evangelical alliance and committed his country to a “safe third country” agreement with the U.S. requiring asylum seekers passing through Guatemala to the U.S. to apply for asylum first in Guatemala. Both Hernández and Morales took these actions even though Trump substantially reduced USAID funding for the region.
The Northern Triangle countries need U.S. foreign aid. This is most obvious in El Salvador, which has the biggest economic problems in the region. Looking good to the United States while simultaneously acting like anti-democratic, corrupt autocrats and even while trafficking drugs has long been the norm in the region’s relationship with the United States.
Section 9 mandates enhanced engagement with Mexico on the Northern Triangle. Specifically, it addresses better security cooperation at Mexico’s shared border with Guatemala and Belize. This is another aspect of the migration challenge that must be rigorously monitored from a human rights perspective.
Section 10 details the requirements for the Department of State and USAID regarding reporting on migration issues.
Section 11 is particularly important because it describes the targeted sanctions to combat corruption in the Northern Triangle. This section first clarifies that Congress understands that corruption by private individuals and government officials causes significant harm to the economies of these countries, and deprives the citizenry of opportunities. In many instances, corruption in the region is also facilitated and carried out by individuals in third countries. As such, imposing sanctions on individuals in other parts of the world, especially in the Western Hemisphere, who engage in corruption affecting the Northern Triangle will also benefit the citizens and governments of those countries.
This is all true, but it’s certainly nothing new. Corruption is one of the mainstays of a democratic economic and political model that perpetuates underdevelopment as its main source of revenue.
Three forms of corruption mentioned in the new law stand out because they reveal a broader view of the corruption seen in the Northern Triangle. The first form of corruption is related to government contracts. This is the type of corruption targeted by CICIG and MACCIH, and is carried out by networks of national and international politicians and business people who represent the region’s decision-making elites. Resources obtained by defrauding the government return to the political system through the illicit financing of electoral campaigns, and heavily influence political decisions. This type of corruption also distorts the economy and affects some of the private sector since it enables unfair competition that discourages business people at all levels. This type of corruption must be fought fiercely if the objective is to strengthen democracies, since it perpetuates patrimonialism and authoritarianism.
The second type of corruption that will be sanctioned is bribery and extortion. Bribery is the oil that lubricates the engine of corruption; without it, the engine doesn’t work. It has a severe impact on institutional efficiency. Winning an atypical government contract almost always implies paying several bribes. It’s common knowledge in the region that many legislators get rich from bribes paid by other politicians or interest groups to manipulate legislative agendas.
This type of extortion is not the same extortion that gangs ruthlessly apply to collect protection money from local businesses. This is high-level political extortion, which often goes unnoticed because of widespread impunity. This type of extortion must be understood in the context of this new law to avoid any misinformation and manipulation.
The third area is the facilitation or transfer of the proceeds of corruption, including through money laundering. While this is not entirely clear in the law, it can be argued that many enablers of corruption are not actually crimes or other violations of the law. Rather, they are distortions or “transfers” of bureaucratic proceeds. These are difficult to prove in criminal and civil cases, and are often effected by the operators of corruption networks, people who are highly skilled at managing money and insulating themselves from any potential personal repercussions. They usually maintain low profiles, and are a discrete but constant presence in government bureaucracies. Identifying these shadowy figures will be essential to fighting corruption.
Sections 12, 13, and 14 describe some legal requirements and do not directly refer to the issues described above.
The problem is not what, but how
No rational advocate of democracy would object to achieving the goals of this new law. As in other experiences with international aid from the United States and other donors, the main difficulty is how to implement these measures in the North Triangle.
One of the first challenges is securing the commitment of the region’s leaders and public officials in charge of key institutions, such as prosecutorial offices. Recognizing that these leaders and officials have to keep both the United States and these networks of corruption happy, the message about committing to change needs to be forceful. It needs to carry more weight than the weak threat of denying or cancelling visas.
Another challenge is program and project management. USAID’s preferred implementation mode is to contract private sector organizations for this task. Implementation outcomes are all over the map, but there is a tangible need to improve the contextualization of these implementations, monitor them more closely, and evaluate them with input from local actors who have not benefited from the funding received.
It is appropriate for the law to target corruption with the expectation that this will help reduce migration from these countries, and also improve their democracies, security and economies. But corruption is a political problem that can’t be fixed with some institutional engineering. This is the biggest challenge for the new U.S. law. Money is not the only reason politicians and business people turn to corruption. It’s also because of the power they can grab, the opportunity to hold onto that power, and the satisfaction of getting away with it all.
This year, the bicentennial of Central American independence from Spain, evokes a paradox. On one hand, we celebrate an independence that others say doesn’t exist when they demand a new, decolonizing sovereignty with rhetoric about liberation from the U.S. imperialist yoke. But on the other hand, there is a strong, unspoken expectation that the United States will put an end to the corrupt political class that condemns these countries to underdevelopment and violence… and migration.
However you look at the bicentennial celebration/commemoration/denial, the Northern Triangle countries are starting a new year that has already displayed the pandemic’s consequences for underdeveloped countries: two hurricanes, controversial elections, massive migrant caravans, and a new U.S. president.
For many people, Joe Biden’s election alleviated the anxiety caused by his predecessor, Donald Trump. The former president’s inflammatory words outraged many and empowered others. For some, Biden also represents expectations of a better democracy. But for others, his election signalled a loss of the moral values that Trump loudly and frequently expounded, but ultimately betrayed.
These expectations and disappointments, this love-hate dichotomy, is translated here into a revolutionary, anti-imperialist expression of Latin American unity. But it also reflects a desire for the gringos to put an end to the many problems that we know we can’t solve on our own.
“If we are to be a gringo protectorate, it’s better to accept it now and let them take over,” says a human rights advocate in the region. Putting aside jingoism and political correctness, there are expectations that the new U.S. administration will make a significant difference compared to Trump. Central America matters to the U.S. because of migration and drug trafficking, but the United States was left with many problems to solve after Trump left office. To what extent will this law prevent the Northern Triangle from succumbing to the darkness of authoritarianism and political mafias? This remains to be seen. In the meantime, perhaps the fear of losing the privilege of going on shopping trips to Miami will give the corrupt politicians and business people of these countries some sleepless nights.