Adapted from an article originally published on Revista Factum.
There has been much attention to the “Engel List” in Central America in recent weeks. The list of corrupt and undemocratic actors published by the US Department of State on July 1 was highly anticipated, especially after a list of corrupt Central American officials requested by Congresswoman Norma Torres was published in May. With the Torres list paving the way, a total of 55 individuals from El Salvador, Guatemala, and Honduras were included on the Engel List, including high-level judges, members of Congress, and (in the case of El Salvador) presidential administration officials.
Many of those placed on the list or associated with those named have sought to downplay its importance or asserted a lack of evidence against them. But what does inclusion on the Engel list actually mean? How important is it from the US perspective and what weight does it have?
The US Framework
The Engel list is known as a compilation of individuals identified by the US government as having engaged in “significant corruption” in El Salvador, Guatemala, and Honduras. While not officially called the “Engel list,” it has received this name colloquially in recognition of former Congressman Eliot Engel, who was the chairman of the House Foreign Affairs Committee and authored the legislation requiring the creation of such a list. First, individuals included on this list will be denied visas and admission to the United States. Second, they may be subject to other targeted sanctions such as asset freezing, as it is likely that the individuals on the Engel list will be considered for the more comprehensive Global Magnitsky designations (two Guatemalans on the Engel list are already designated under Global Magnitsky and another sanctions program for involvement in significant corruption).
The development of the list is part of a broader strategy mandated by Engel’s legislation to address the root causes of migration by, among other things, combating corruption and strengthening democratic governance. This is also consistent with the Biden Administration’s policies and priorities and its particular focus on rooting out corruption in the Northern Triangle, including declaring the fight against corruption to be a core national security interest. The law[1] requires the President (through the Department of State) to publish a report identifying individuals who have “knowingly engaged in actions that undermine democratic processes or institutions, or in significant corruption or obstruction of investigations into such acts of corruption in El Salvador, Guatemala, and Honduras.” In addition to acts of corruption such as bribery and money laundering, the law also includes “[a]cts of violence, harassment, or intimidation directed at governmental and nongovernmental corruption investigators” as elements that can lead to inclusion on the Engel list.
The Engel List’s added value
To be clear, then, the Engel list is focused not merely on traditional forms of corruption such as misuse of public funds for personal benefit – which of course have a negative effect on human rights and the rule of law – but also on efforts that have sought to undermine the investigation of such corruption, or to undermine democracy itself in El Salvador, Guatemala and Honduras. This aspect of the Engel list is highly significant, and in addition to its exclusive application to the Northern Triangle countries, is what distinguishes it from other similar lists and targeted sanctions programs.
The US has a variety of visa restrictions and targeted sanctions at its disposal. To begin with, immigration law already provides the government with the ability to prohibit the entry of specific persons if that is deemed to be in the foreign policy interest of the United States. For its part, the Global Magnitsky regime also grants the US government the authority to block corrupt actors and human rights abusers from entering the country, as well as to freeze their assets, and to generally stop them from doing business in the United States. Furthermore, a provision of law on anti-kleptocracy and human rights (7031c visa sanctions) prohibits the entry of foreign officials and their family members who have been “involved, directly or indirectly, in significant corruption… or a gross violation of human rights.”
The Engel list therefore provides US officials with an additional tool to punish corrupt actors, but in certain ways it also goes further than other sanctions regimes – by focusing both on obstruction of corruption investigations through violence, harassment, or intimidation; and on the undermining of democratic processes and institutions. This means that the law is responding specifically to the reality of the Northern Triangle countries, where corruption manifests and grows not just through illicit enrichment or unfair playing fields, but through the breakdown of the separation of powers and the capture of state institutions – specifically the judiciary – as well as through the criminalization of anti-corruption crusaders and other human rights defenders.
Thus, even though the Engel list is not focused per se on human rights violators, as is the case for Global Magnitsky, it is clear through the Engel designations that the US State Department is prioritizing human rights – including the right to equality before law and the right to an independent judiciary. For example, the inclusion of the Legal Advisor to President Bukele of El Salvador for his role in removing Supreme Court justices and the Attorney General; of multiple officials in Guatemala for abuse of authority in manipulating the appointment of high court judges; and of sitting members of the Honduran Congress for obstruction of justice, also demonstrates a more nuanced understanding of how human rights violations occur in Central America in modern times. While the region no longer experiences the brutal repression that was commonplace during the internal armed conflicts and dictatorships of the last century, the backsliding of respect for democratic institutions such as an independent judiciary is a more subtle and complex form of undermining respect for human rights, and can become a slippery slope towards the types of authoritarian regimes that the region has had to endure for far too long in the past. In this sense, it can be argued that the Engel List is consistent with a human rights approach to corruption that is being promoted by civil society and the Inter-American Commission on Human Rights, which demands a structural analysis of the effects of corruption on human rights.
Naming and shaming, and sending a message
Another significant element of the Engel list is that it is required by law to be made public, which differs from some other US targeted sanction programs. For example, the 7031c sanctions mentioned above can be made public or private. The fact that the Engel list must be made public demonstrates the Congressional intent to “name and shame” perpetrators of corruption in the Northern Triangle. The public nature of the list can also be seen as an act of solidarity with the victims of corruption and attacks against democracy.
In this sense it is worth evaluating the criticism, voiced by Nayib Bukele for example, that the Engel List is merely political. The list is certainly strategic – since it cannot name every corrupt actor in the three countries, choices must be made about who to include and not to include. The inclusion of sitting high-level judges from both El Salvador and Guatemala sends a strong message that the integrity of the judiciary is paramount from the US perspective. And it is certainly significant that only the list for El Salvador includes sitting presidential administration officials, including President Bukele’s Legal Advisor (noted above) and Chief of Cabinet. This puts a laser focus on Bukele and his associates in the aftermath of the democratic rupture that occurred in that country on May 1, when the new Salvadoran Legislative Assembly summarily dismissed and replaced the Attorney General and the Constitutional Chamber justices of the Supreme Court.
The list for Guatemala is noteworthy for its focus on individuals who have manipulated the selection processes for high-level judges. This includes two sitting justices (of the Supreme Court and of the Constitutional Court), and officials and operatives who were involved in influence peddling and the “parallel commissions 2020” case. It also names three members of the NGO “Fundación contra el Terrorismo” (FCT) for obstructing justice in corruption cases. The composition of the Guatemala section of the Engel list therefore demonstrates an understanding of how the different forms of criminality intersect in that country to coopt democratic institutions and stymie corruption investigations.
Unlike the El Salvador and Guatemala sections of the Engel List, where there was a strong application of the provisions regarding the undermining of democratic institutions, the individuals from Honduras are for the most part accused of more traditional forms of corruption – which while no less insidious, makes the Honduras list seem like less of a game changer. There has also been understandable disappointment among anti-corruption and human rights advocates in Honduras that no one in President Juan Orlando Hernandez’s inner circle was listed, despite the ample evidence against Hernandez for narcotrafficking and other crimes. It is however worth noting that Hernandez is already under investigation by US prosecutors, and it is possible that a decision was made to avoid any political fallout from the Engel list that could compromise that investigation.
However, the fact that the list is politically strategic does not mean that it is arbitrary, as some who are named on it have claimed. Many individuals listed have already been indicted and their crimes are well-known. Furthermore, these types of lists typically undergo a rigorous review process by multiple US government agencies, and the inclusion of any individual must be supported by ample evidence. Although at least some of this evidence is classified, much of it is publicly available thanks to the work of independent investigative journalists, civil society organizations, and multilateral anticorruption bodies. There are also robust domestic and international legal standards which can be referred to when objectively evaluating the list, including the UN Convention Against Corruption, which for example specifically addresses obstruction of justice. Furthermore, several of the individuals on the list were investigated by CICIG (International Commission against Impunity in Guatemala) or MACCIH (Mission to Support the Fight against Corruption and Impunity in Honduras). This raises another important point – the Engel list provides an opportunity to utilize the extensive evidence uncovered by CICIG and MACCIH, and to ensure that corrupt actors are subject to some form of accountability even though they succeeded in driving out these multilateral anticorruption bodies.
Conclusion
While the Engel list is powerful simply for the attention it brings to corrupt and undemocratic actors, it has concrete consequences. As noted above, individuals on the Engel list are prohibited from entering the United States, i.e. they will be denied visas or have their visas revoked, and they are likely to be subject to additional sanctions such as the seizure of their assets in the US. Indeed, considering that the US government is devoting increasing resources to targeted sanctions, and that the Engel list is required by law to be updated at least once per year (with the possibility that it could be published more frequently), there can be no doubt that tools such as the Engel list will grow in importance as the Biden administration carries out its anti-corruption foreign policy in the region. But the list can be leveraged not just by the US government, but by anti-corruption advocates in the Northern Triangle. The public should demand that those named on the Engel List and others like it are investigated by anti-corruption prosecutors and other relevant authorities. At the same time, civil society organizations should consider bringing legal actions as private prosecutors or seeking accountability through the creative use of other legal tools, such as the writ of amparo, or demanding that individuals named on the list are ineligible for public office. For its part, the US government should also continue to be attentive to the valuable information and evidence that is gathered by civil society and independent investigative journalists in developing future versions of the Engel list. If it does so, the Engel list can truly be a dynamic and impactful means to fight against corruption and democratic backsliding.
[1] https://www.congress.gov/116/bills/hr133/BILLS-116hr133enr.pdf. See Section 353, TARGETED SANCTIONS TO FIGHT CORRUPTION IN EL SALVADOR, GUATEMALA, AND HONDURAS.
* Senior Legal Advisor, DPLF.
