22 de marzo 2023
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The Report of the UN Group of Experts on Human Rights in Nicaragua (GHREN) identified President Daniel Ortega and Vice-President Rosario Murillo as the "have the highest level of responsibility" for the commission of crimes against humanity, but also identified "the entire structure: those who ordered, acted and accompanied this criminal apparatus", explains former Colombian prosecutor Angela Buitrago, a member of the investigative commission.
The jurist, who acted as prosecutor in the case of the assault on the Palace of Justice in Bogotá and investigated the disappearance of the 43 Mexican students in Ayotzinapa, considers that in Nicaragua there are several ways to bring to justice those responsible for these crimes: universal jurisdiction, the international court of justice, and the Inter-American Human Rights Court.
On April 4, the UN Human Rights Council will debate a resolution to extend the mandate of the UN Group of Experts, and Buitrago hopes that with the Council's backing, they will be able to expand investigations into the responsibility of the Ortega- Murillo regime's mid-level chain of command.
In an interview conducted in San José, Costa Rica for CONFIDENCIAL and Esta Semana, Angela Buitrago stressed the importance of the testimony of the victims to investigate those responsible for, as well as the implementers of, the repressive machinery that "has done everything to maintain power at the expense of the lives, the integrity and the dignity of the Nicaraguan people."
The first recommendation of the Group of Experts is to the government of Nicaragua, calling on it to immediately release all persons arbitrarily deprived of their freedom and to cease political persecution, including arbitrary deprivation of nationality and forced deportations. The government has so far ignored the commission. What are the consequences of the government's refusal to establish contact with the UN, which is now making official recommendations?
It's important to remember that Nicaragua has obligations as a signatory State of the Convention and as a signatory State of the international mechanisms. Nicaragua has acquired these obligations and so the fact that it tries to ignore them does not mean it can decide to not comply with them. There is also the possibility of enforceability through international mechanisms and also by countries that are seeing the rights of humanity seriously harmed, that crimes against humanity are being committed.
The recommendation to immediately stop the loss of nationality refers to the existence of an international commitment that says that the loss of nationality is not possible. There is an international prohibition in this regard. This means that the loss of nationality decreed on the basis of persecution as an underlying crime has no legal effect.
The government has not paid any attention to this nor has it initiated any kind of contact, either with the mechanism or with the United Nations. But the United Nations has the tools to achieve that the recommendations are, in some way, heeded.
The Colombian Ángela Maria Buitrago and the German Jan-Michael Simon, UN experts, participated in a press conference in San José (Costa Rica). The UN experts analyzing the situation in Nicaragua urged the international community to take "effective action" to prevent further human rights violations.
Universal jurisdiction
What alternatives does the UN have to ensure that these recommendations are complied with and that the Nicaraguan government abides by the commitments it has made in these international conventions? Can they take it to another level or jurisdiction? Can they create a special tribunal for the case of Nicaragua?
We understand that by resorting to international law it is feasible for the UN to seek mechanisms –and to activate universal jurisdictions– to achieve the prevention of impunity for actions that are affecting thousands of people in Nicaragua under the astonished gaze of countries that are committed to the principle of protection in these kinds of cases.
We know that Nicaragua did not sign the Rome Statute, but we have also proposed within the recommendations of the GHREN report that other countries can be consulted to see how the exercise of universal jurisdiction can be activated. There may be countries that take on the review of these cases on a judicial level. There's also the possibility that in cases where victims have dual nationality that these countries could take on the investigations regarding their citizens, based on the understanding that their rights were seriously violated, and so there we could have a double channel.
When you talk about the principle of universal jurisdiction, I understand that there are some countries in whose criminal legislation it is fully incorporated, such as in Argentina, Ecuador, Panama, El Salvador, and Paraguay. Others have it associated with different conventions. Are there precedents in other countries, where prosecutions of crimes against humanity have been carried out under universal jurisdiction?
Yes. The clearest example is the activation of universal jurisdiction by Judge Baltazar Garzón in Spain with respect to the acts committed by [Augusto] Pinochet during the Chilean dictatorship. From that perspective, we can fully appreciate the relevance of international law, within which the principle of universality is applied. There are states that are very clearly putting this principle into action. The principle is called territorial scope, and it means that it doesn't matter whether the crime was committed on their own soil or not. Rather, universal jurisdiction allows them to activate their jurisdiction to act against a serious crime.
Universal jurisdiction is included, for example, in Colombia's Penal Code. That's something that could be used as a way to punish these crimes. Universal jurisdiction is activated to prevent impunity in these kinds of serious crimes. There is always some way or another that those jurisdictions could be activated. Argentina, as you mentioned, is an example, and based on that, there is already an inquiry that needs to be analyzed. Given how far Argentina has come on this, the Group has had direct communication with the prosecutors and is exploring the possibility of having the report be an input within the context of universal jurisdiction. We'll see how the precedents of the Ad Hoc and Ex Post tribunals could be part of this application of universal jurisdiction.
Read: Ortega regime engaged in hate speech and incitement to violence
The Group recommends that the international community initiate legal actions against individuals responsible for violations, abuses and crimes. These crimes are documented in the report, but their perpetrators are not named. Is there more information in this report that is not in the public domain?
We point out two names, that have the highest level of responsibility in the verification of the coordination, management, and control of the whole structure. But the report is designed in such a way that it allows us to identify the structures that were decisive in the commission of these acts.
Those two names you're talking about are President Daniel Ortega and Vice-President Rosario Murillo?
That is correct. President Daniel Ortega and the Vice-President. But if you look, there are also a series of structures that acted obligatorily and that lent themselves to commit these acts as well. You will see that we mentioned the Ministry of Health, the health entity that prohibited the provision of services to the wounded. We mentioned the issue of justice, the issue of the Prosecutor's Office, the issue of judges, and the issue of the Police. If you review, there is clear information about the people who are in these structures of authority, command, and action, and based on that, we have the names within our evidence search that allows us to say who ordered, acted, and accompanied this whole criminal apparatus.
Read: Dante Mossi alleges he was “misquoted” when he defended Ortega’s dictatorship
International Financial Institutions
The commission also recommends that governments and multilateral organizations who are negotiating development aid or investment in Nicaragua prioritize actions aimed at improving the human rights situation. How can this be put into practice with the International Monetary Fund (IMF), the World Bank, and the Central American Bank for Economic Integration (CABEI), which say they are governed by technical criteria? Just last Thursday we heard Dante Mossi, the president of CABEI, say in a debate at the Inter-American Dialogue, "Well, I carry out orders from the governors of the bank to grant credits to the Ortega dictatorship. I am not a human rights entity."
Within the International and national contexts, there are already procedures that require verifications that could prevent the disbursement of funds, even if the technical conditions exist. And I say this because of the rules that are now global, including in matters of corruption and money laundering, where verifications of a series of elements are required, such that the approval of funds is no longer simply a technical matter, but depends on compliance with a series of requirements and conditions. When we're talking about the kinds of loans that are for the population in cases of emergency, in cases of humanitarian aid, then they are required to ensure that the funds comply with certain conditions in relation to the disbursement and handling of the funds, and above all, that the funds are used within the guidelines under which they were disbursed.
When we issue this call to prioritize human rights, we are asking that all the elements be taken into account in relation to a situation that has already been proven, has already been diagnosed, and researched. This is about the fact that serious violations and crimes against humanity are being carried out in a systematic and reiterated manner, and in that sense, financial capital is not irrelevant to the work done within a country.
If I use that capital to carry out extrajudicial executions, to provide illicit materials to certain groups, the international staff won't allow me to do that, and the regulations don't allow me to do so either. I'm saying this in a generic way, not with respect to any of the organizations you mentioned, but to illustrate that in economic terms, the technical issue is not only the two plus two; it is already surrounded by security measures that are imbued by the whole context so they can serve to prevent possible criminal acts.
At the end of the day, this is a matter of the political will of the governments at the head of the IMF, the World Bank, the Inter-American Development Bank, and the CABEI. Do you think there is enough political will to incorporate this principle of respect for human rights, which is in the fundamental pillars of all these organizations? Or will they simply look the other way again?
This kind of political will is a major factor –no one disputes that– but another factor is the obligation to respect global parameters. All the entities you mentioned are covered by those parameters and have the obligation to work within those parameters. We have been able to have some contact with some of those entities and we see some willingness to understand how these elements are being managed.
Several countries that make up the UN Commission on Human Rights have proposed extending the mandate of the Group of Experts for one or two more years so that the commission's powers to continue investigating could also be strengthened. If this is done, what would be the focus of future investigations by this group of experts?
The report itself points to the elements we consider necessary to go deeper into. On some issues, although they were treated pretty broadly, the report states that they should be researched much more explicitly and in much more depth to determine, for example, how the whole chain of command and action is constituted and built into all the structures.
How do you see the Nicaraguan crisis in the context of Latin American dictatorships and these types of State crimes?
In Nicaragua, we've seen a particular phenomenon, which is the way in which the dismantling of democracy has been organized and carried out in such a detailed and gradual way. This has taken years of deconstruction and has been carried out through legal constitutional modifications, the instrumentalization of justice, and processes where platforms are being put in place to achieve the objectives of maintaining power and control. This is happening within the context of the evident ambition to prevent the people at the top from being removed, including preventing real elections and democracy within a country.
They also go to the extreme of violence, of persecution, to ensure their purpose, which is evident in each of the steps they've taken, up to and including what we finally know as forced deportation and loss of nationality.
We believe that this is a form of physical, legal, political, and existential elimination that has great consequences and is of great humanitarian concern to us because it's the reality of the 316 people who are left without nationality, and it's the beginning of a great diaspora of the other victims who are their extended families both inside and outside of Nicaragua, people who have been deprived of any possibility of survival, of their past, but most importantly, of human dignity.
The Nicaraguan state has been one that has carried out a policy that we call all-encompassing. It's systematic and generalized, designed to achieve its purpose without any kind of remorse. Increasingly, there is a tendency towards the elimination of anyone considered a political opponent, or even suspected of being one. A person's age hasn't mattered, having small children hasn't mattered, and being a woman hasn't mattered. Here the only thing that matters is maintaining power. This worries us very much because they have done everything to maintain power at the expense of the lives, integrity, and dignity of the Nicaraguan people.
This article was originally published in Spanish in Confidencial and translated by our staff.
