VIVANCO MISSION: STATE OF PLAY

UNCLAS SECTION 01 OF 03 GUATEMALA 000471

SIPDIS

SENSITIVE

DEPARTMENT FOR DRL, IO AND WHA/CEN

E.O. 12958: N/A
TAGS: PREL PHUM PGOV GT
SUBJECT: VIVANCO MISSION: STATE OF PLAY



1. (SBU) Summary: Human Rights Watch Latin America Director
Jose Miguel Vivanco visited Guatemala February 11-14 to
consult with the GOG, the Human Rights Ombudsman, and human
rights leaders about the Ombudsman's proposal to create an
international Commission to Investigate Clandestine Groups
(CICIACS). The Ombudsman and NGO leaders were skeptical of
any effort to change the existing proposal; the GOG publicly
supported Vivanco's efforts. We expect Vivanco to come back
with a modified proposal in early March. End Summary.

FM Welcomes CICIACS Proposal With Reservations
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2. (U) On February 14, after meeting with Vivanco to discuss
the CICIACS proposal the day before, Foreign Minister Edgar
Gutierrez publicly expressed GOG support for what Vivanco
will achieve through his consultations. The FM also called
the proposal "possible to improve" and gave his own
"suggestions:" that the CICIACS be authorized by Congress;
that its membership be expanded to include representatives of
Congress, the Public Ministry and the Ombudsman; and that its
mandate include investigation of crimes implicating private
security forces and organized crime, in addition to groups
linked to state agents. The Ombudsman promptly replied
publicly that Gutierrez' suggestions added nothing to the
existing proposal, and human rights leaders said the GOG
should now propose the creation of a CICIACS to the UN and
OAS.

Vivanco Upbeat Despite Tough Early Rounds with NGOs
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3. (SBU) Jose Miguel Vivanco told the Ambassador, HROff,
PolCouns, AID officer and PolOff on February 12 that he
thought he had allayed human rights groups' concerns about
his role as facilitator of the proposal for a commission to
investigate clandestine groups and had made some progress as
follows.

Process:

-- Vivanco acknowledged that his personal prestige and
credibility is on the line, and said the GOG had not yet
limited his efforts in any way.

-- Vivanco said he was to meet with the Attorney General
later that evening, at the AG's insistent request.

-- He would meet with FM Gutierrez on February 13 to get into
the substance of the proposal for the first time since being
named as "facilitator" by the GOG.

-- He would leave Guatemala on February 14 and would work on
a proposal based on what he has discussed during his visit,
in Washington.

-- He will share with us a draft of what he intends to
propose, and would appreciate Embassy comment and any
suggestions.

-- He will return to Guatemala in early March to press the
GOG to accept key elements of a commission.

Substantive Aspects of a Vivanco Proposal:

-- Vivanco said he is willing to disown any effort which is
not viable to investigate and lead to criminal prosecution.
Anything less would be a "show" and not worth the effort.

-- After consulting with Guatemalan constitutional experts,
he believes that legislation, not just a government decree,
is necessary to give the commission sufficient authority to
survive legal challenges, compel testimony through subpoena,
and, possibly, to engage in plea bargaining to build cases.

-- He believes the key elements of any commission must
include more prosecutorial expertise at the commissioner
level, not just in the technical staff ranks. To do so, he
has suggested to NGOs that the commissioners be increased
from three to five, to include three nominated by President
Portillo from a list of candidates selected by the ombudsman.
The additional two commissioners would be Guatemalan or
foreigners with impeccable prosecutorial expertise, "like
(Spanish investigative magistrate Baltazar) Garzon," he told
NGOs.

-- He believes that the commission must be autonomous but
will also need police participation, and suggests a specially
vetted group.

-- He has consulted with Peruvian special prosecutor Jose
Ugaz, who gave him the idea about including police, as long
as they can be vetted.


4. (SBU) Without endorsing his specific proposals, the
Ambassador expressed strong support for Vivanco's efforts to
put together a proposal for a viable commission. He confided
in a short aside to Vivanco that NGOs continue to have
misgivings about Vivanco's role, and will be particularly
skeptical to any GOG elements (especially police) working
with a commission and the proposal to enlarge the commission.
PolCouns warned that defining the scope of the investigation
will be important and that the GOG may attempt to do so in a
manner that protects itself.

HR Groups Still Have Misgivings About Vivanco
--------------


5. (SBU) The Ambassador met with human rights leaders (Helen
Mack, Frank LaRue, Orlando Blanco, Gustavo Meono, Miguel
Angel Albizures, and Nery Rodenas) on February 14 to discuss
their views of Vivanco's facilitation efforts. The human
rights leaders expressed continued reservations about
Vivanco's mission, although LaRue said that they were
relieved to have clarified that Human Rights Watch stands
behind Vivanco's efforts. They then described the following
points of disagreement with Vivanco's suggestions:

a) Commission Composition: increasing the commission members
from 3 to 5 would upset the balance envisioned by the NGOs.
Instead, they suggest that the Attorney General use his power
under Article 44 of the Public Ministry's statutes to make an
agreement with the commission that includes the naming of a
Special Prosecutor (with commission input) to work with the
commission, but not be a member of it. The commission could
include distinguished prosecutors or jurists named by the
three member institutions (UN, OAS, GOG),and should also
hire this expertise for the technical staff level. LaRue
added that it would be good if the US could provide staff for
this purpose. The commission should not be expanded, which
would open it to undue GOG manipulation. Vivanco had
suggested that the Special Prosecutor be a full member of the
commission, which they reject.

b) Legal Foundation: Helen Mack argued that after consulting
with legal experts, the NGOs propose that the GOG negotiate
an agreement with the UN and OAS on the creation of the
commission (including immunities, scope, composition etc.)
and that the Congress ratify the agreement with a legislative
accord. This is how MINUGUA and the Historical Clarification
Commission were both set up.

c) Initiating Prosecution: LaRue emphasized that the
commission must finish its investigation and report before
pursuing individual cases. To do the reverse would bog the
commission down in legal processes and cripple its ability to
complete a full report.

d) Investigation Period: Mack indicated that she thought 18
months would not be enough to complete the investigation, and
mentioned a 24-month maximum time period as preferable.


6. (SBU) Meono, who accompanied the Ombudsman on his recent
visit to Washington and New York, reported that consultations
there with the UN (including the office of the UN High
Commissioner for Human Rights),OAS (including someone from
the Inter-American Commission on Human Rights),and
Department of State were encouraging. Helen Mack said that
MINUGUA has been privately very supportive of the proposal.


7. (SBU) The Ambassador told the group that he intends to
meet with the Ombudsman to discuss his views and show Embassy
support. He also asked the groups to send us the latest copy
of their revised proposal as soon possible (Mack later told
us she will need more internal discussions before they can
send a new document to us.) In response to the Ambassador's
inquiry of how we can help:

--Blanco asked that the USG reinforce the urgency of getting
a commission started to the GOG. They expect Vivanco to
produce a draft by around Feb. 19, and to be back in
Guatemala in early March. The GOG should not be allowed to
delay its acceptance of a proposal past mid-March.

-- Mack suggested that the Ambassador speak to FM Gutierrez
and encourage the GOG to stick with the 3-member commission
proposal. Mack also requested that the Ambassador discuss
the proposal with Attorney General de Leon and encourage him
to support the idea of entering an agreement with the
commission, including the naming of a Special Prosecutor to
work with the commission. She suggested the Ambassador
emphasize that it is his constitutional obligation to support
the commission. LaRue suggested the Ambassador also tell the
AG that the commission is not seeking to displace the MP, but
to support its work.

Comment
--------------


8. (SBU) Vivanco seemed a little taken aback by the
suspicious reception from his friends in the human rights
community, commenting that he had been grilled for over an
hour about any stipend or per diem he might be receiving.
That suspicion is based on the misgivings about the GOG's
intentions for the CICIACS proposal more than doubts about
Vivanco himself. His exploration of modifications to
strengthen the proposal, in his view, only worsened those
doubts. Gutierrez' public comments were viewed with the same
skepticism. Should he return with a substantially modified
proposal, Vivanco may find the human rights groups a harder
sell than Portillo. We will do what we can to facilitate the
work of the facilitator, once we receive Vivanco's draft.
HAMILTON