7 de marzo 2023
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"From 2018 til now, crimes against humanity continue to be committed in Nicaragua, including murder, torture, imprisonment, sexual violence, and forced deportation. The orders have been intentionally issued from the highest authorities of the Presidency and the Vice-Presidency, and therefore there is State responsibility for these crimes," is one of the conclusions of the report of a year-long investigation by the UN Group of Human Rights Experts on Nicaragua (GHREN), according to the president of that group, Jan-Michael Simon.
In an interview with Esta Semana and CONFIDENCIAL, the German jurist explained that although his team needs to conduct new investigations to "individualize criminal responsibilities" and determine the responsibilities of the middle management of the Police, the Penitentiary System, the Attorney General's Office, the Judiciary, and the Ministry of Health in the commission of these crimes, "we have established the responsibility of the State leadership, with the threshold of evidence that we have defined, to identify the responsibility of Mr. Daniel Ortega and Mrs. Rosario Murillo."
Simon, a researcher on crime, security, and law, a specialist in criminal law, considers that "all of Nicaragua is part of the crime scene", and hopes that by presenting the report on March 6 before the UN Human Rights Council in Geneva, the Group's mandate to continue investigating will be renewed and strengthened.
Simon affirms that the report recommends that the international community "take action to hold accountable those responsible for justice; extend individual sanctions to those responsible in the chain of command; and condition any economic cooperation with Nicaragua on an improvement in the grave human rights situation."
The president of the Group of Experts on Human Rights said he was surprised by "the particular cruelty with which the government acts. In addition to seeking to neutralize certain opponents, which in itself is very serious, it is trying to sow terror in the population, and this is very unusual in my experience in the region".
Your fact-finding mission received no collaboration from the Nicaraguan government. They didn't even allow you to visit the country, but instead disqualified the mission's mandate. How are the findings and conclusions of this report affected by the lack of collaboration and the opposition from the State?
We can say that it always affects an investigation, whether it has to do with our particular mandate or any other mandate, to not have access to the crime scene. And when we are talking about crimes against humanity and systematic violations as serious as we have found in Nicaragua, the crime scene is the entire national territory.
However, it's not 100% necessary to have access to the field. Since the dimensions of the crimes involve both the multiplicity of victims who have left the country and the notoriety of the documented facts, we can also find enough evidence from outside to reach the conclusions we have reached. In addition, it is important to emphasize that our mandate is not the only one that has not had access to the countries: many of the mechanisms that have been installed by the Council have had this challenge and have overcome it, particularly in the case of Syria.
Pattern of extrajudicial executions
The report indicates that you analyzed 142 individual cases of victims, including more than 40 extrajudicial executions perpetrated by the police or by vigilante groups. What is the main evidence you found in these cases? Is there a pattern in the commission of these murders?
Yes, in terms of the murders we can demonstrate that they are always the same actors, always in the same situations where they use firearms, many of them long distance weapons. We have the evidence of the bullet impacts, and we also have circumstantial evidence that provides sufficient proof to be able to reach that conclusion. What is always important to take into account is that we are not analyzing isolated homicides, but rather, we are detecting patterns that have a modus operandi in terms of time, space, and with the same actors that gradually repeat themselves. And it's relevant to point out that in addition to the 40 cases, we have investigated 75 other cases, which coincide with the findings of those 40 cases we investigated in depth. That is to say, the sample we had was quite broad to be able to reach the conclusion we reached.
The conclusions of the report on this and other crimes indicate that they were carried out following orders from the highest level, from the presidency of Daniel Ortega and the vice presidency of Rosario Murillo, but that you cannot criminally individualize those responsible for committing them. Why?
In terms of the highest authorities of the State, there is sufficient evidence, from pronouncements and documentary evidence that we have, and other sources that point to who is in the top position of the chain of command, which then goes down to the direct actors. As for the direct actors, we have identified the units that have operated, but it is much more complex to identify, within those units, the individuals who have acted. As for the heads of the units, we have identified the people, and we are keeping them in our database so the information can be accessed by agencies interested in opening legal cases to prosecute these persons.
Denial of justice and of health care
In addition to the extrajudicial executions, the report speaks of very serious cases such as the denial of health services for the wounded in the protests, as ordered by the Minister of Health, who acted in coordination to inform the Police about the wounded protesters. Some emblematic cases of this denial of care have been made known, such as that of the young teenager, Alvarito Conrado. What new findings does the Commission's investigation offer?
The main finding presented in the report on that subject is that the denial of health services –and there is evidence of this– was perpetrated from the top levels of the government. That is, it was not only the executive arm of the Security Forces, but also the health sector that was used as a tool to commit the crimes that we have demonstrated.
It is something that goes beyond simply pulling a trigger or pulling several triggers, and that is, I believe, the most important thing in our report. It demonstrates the responsibility of the State, and of the entire leadership, in terms of how these crimes were carried out as a concerted operation.
The report also focuses on documenting the obstruction of justice when the victims asked the Prosecutor's Office, the Police, and the judicial system to investigate these crimes, and that furthermore, the perpetrators are protected by the Amnesty Law, which was granted in 2019 such that all these investigations are closed, at least within the official system. Can these investigations be reopened? Would the Amnesty Law have to be repealed first?
This law is basically invalid under international law because it violates the basic principles of, and international commitments on, human rights, in terms of the duty to investigate and prosecute, including the duty to condemn serious human rights violations. Therefore, yes, it's necessary to repeal it for internal reasons, but at the international level, this type of legislation –that exempts certain conducts from condemnation when they are not in fact eligible for amnesty– has no validity whatsoever.
And as for the obstruction of justice, I would like to point out something which is even bigger, and that is the retaliation against the victims' family members when they sought justice in Nicaragua. It is not only that they have been victimized as family members in relation to what happened to their loved ones, but even worse, they have been revictimized by the State itself, by the strong retaliation they have suffered when they sought justice or some mechanism of reparation for these executions.
Arbitrary detentions and torture
Who are the victims? Specifically, who are the people who were subjected to arbitrary detentions or violations of their rights? Does it have a broader impact on Nicaraguan society, because in Nicaragua there are people who say: "They haven't messed with me, just with those who were repressed or imprisoned." But repression affects everyone.
Yes, that's why we have reached a very specific conclusion, which has to do with the political component of the violations. We have described and concluded that they are crimes of political persecution, that is to say, they are violations of rights that not only imply the right to life, to physical integrity, but rather the are the suppression of all liberties in the context of an indiscriminate attack on the population. This leaves civic space destroyed, with civil and political rights destroyed, and where, in the end, the whole society is the victim.
It is especially serious in the case of Nicaragua, because a kind of climate of terror has been sown. It's not only very specific sectors of society who are afraid, but rather anyone and everyone who might be identified as not loyal to what the government is doing. This is something we have seen in the past, in military dictatorships such as those of Chile and Argentina, for example.
The government has always alleged that it has been the target of an attempted coup d'état, or of a conspiracy. This prompted the incorporation of these concepts into laws used to accuse and condemn political prisoners. Does the investigation carried out by this commission find any evidence in relation to these allegations by the government?
We have not, actually, found any evidence regarding this matter and we have tried to investigate it thoroughly. We talked with many different sources, not only from one side, but also those who were accessible on the other side, and the truth is we have not found any evidence of this.
The most important thing in all this is that, even supposing it had been an attempted coup d'état, it would not at all justify the magnitude of the State's reaction that we have detected. A state that is governed by rule of law must respond to positions against the constitutional regime with proportional tools under the rule of law. That is definitely not the case in Nicaragua. So this type of argument lacks both empirical value and hypothetical value in terms of what could legally justify the actions we have identified.
It seems that this report was only finalized last week, because it is up-to-date with facts such as the stripping of nationality against 317 citizens. What is the significance of the stripping of nationality, from a criminal point of view, or from a human rights point of view?
It is a violation of the right to nationality, which has been reiterated on several occasions by the United Nations Human Rights Council, by the Secretary General. But in criminal terms, this has an even more serious implication, because with this action, Nicaragua is in line with practices of other regimes in the past, and it shows that the regime is capable not only of violating the right to life and the right to physical integrity, but also of violating the rights of the citizen to be a person in his or her own country.
This is what we consider an act of political persecution, which is a criminal action against humanity, because it is part of an attack against a civilian population. And when we add to this the displacement of people, we arrive at a behavior that is typical of medieval societies, when banishment was practiced. It is not a coincidence that this term is being used in this context in Nicaragua; it is a pre-modern treatment of people that generates a dynamic that is not compatible with the 21st century, nor with the 20th century, nor with the 19th century – perhaps with the 18th century and before.
Does your report include the heads of the chain of command of the Police, of the different branches of government, of the National Assembly, of some ministries? That is to say, is this chain of command implicated? Or can this only be determined once the criminal responsibilities are individualized?
In terms of State responsibility, our conclusions are clear and this has implications for the international relations of the State of Nicaragua. In terms of individual responsibilities the implications go from the highest levels of the State down to the direct perpetrator.
To get to the responsibility of the direct perpetrators, we need to deepen the investigations in many aspects. But as for the indirect perpetrators, we have already established the responsibility of the State leadership, with the threshold of evidence that we have defined, to identify the responsibility of Mr. Daniel Ortega and Mrs. Rosario Murillo.
You have participated previously in investigations like this one in other countries. What conclusion do you personally draw from the Nicaraguan crisis?
It is a crisis that stems from a dynamic that did not begin in April 2018. It started long before that, with the dismantling of the checks and balances of justice and other elements of democratic rule of law. The problem is also with the electoral system –a long process that began more than 15 years ago– that led to this situation.
The other thing that caught my attention is the particular cruelty with which the Nicaraguan government acted and continues to act. I am used to seeing, in this type of work, very serious human rights violations of different kinds, but the very particular cruelty, for example, of the banishment or psychological torture within the prison system which was set up, is quite unique and shows that the actors are not only looking to neutralize certain opponents – which in itself is very serious–, but it is to sow terror in the population. And that is very unusual in my experience in the region.
This article was originally published in Spanish in Confidencial and translated by our staff.
