International lawyer: as his options narrow, he will have to decide between keeping them in jail, or staying in power.
By Carlos F. Chamorro (Confidencial)
HAVANA TIMES – International lawyer Jared Genser was dubbed “the extractor” by The New York Times for the work he has done to get political prisoners out of jail in more than 25 countries. He has defended Bishop Desmond Tutu in South Africa and Nobel Peace Prize winner Liu Xiaobo in China. Now he is the defender of presidential candidates Felix Maradiaga and Juan Sebastian Chamorro.
Genser believes that “Ortega is violating not only international law, but also Nicaragua’s own constitution and laws by detaining people and holding them incommunicado for long periods of time,” and will take the detainees’ case to the United Nations Working Group on Arbitrary Detention.
The lawyer compares Ortega to “a rabid dog, cornered, trapped, and trying to bite anyone who passes by him,” which can be very dangerous, but argues that the way to persuade a dictator to change course is to appeal to those fears. “As his options narrow and he faces more difficult decisions, I think that he will have to decide how important it is for him to keep political prisoners in jail, and if he cares about that more than being able to hold on to power, or more than these other kinds of things that could happen. In my experience, the way to get political prisoners out of jail has always been to drastically raise the cost of keeping them detained above the benefits of doing so,” he says in an interview with Esta Semana.
This Friday, the Nicaraguan government ignored the mandate of the Inter-American Court of Justice to release five political prisoners, including your defendants, aspiring presidential candidates Felix Maradiaga and Juan Sebastian Chamorro. How do you evaluate this negative result?
I think it is fair to say that Daniel Ortega is a pretty lucky guy. The practical reality is that the international community has been rather distracted in recent weeks, most recently with Afghanistan, but before that with Haiti and Cuba, and therefore the world is not paying the kind of attention it needs to be paying to the situation in Nicaragua, and this lets Ortega believe that somehow he can get away with virtually anything. I think that the only way that the dynamics are going to change is for the international community to refocus their efforts on Nicaragua and on the situation of the more than one hundred and fifty political prisoners, thirty, thirty five now, disappeared, and that is the only way that I think we will see a change ultimately in Nicaragua.
The Government not only ignored the Court’s mandate, but also charged Felix, Juan Sebastian, and other political prisoners with so-called conspiracy crimes in a secret hearing.
I think it is shocking and appalling that Felix and Juan Sebastian were targeted with such obviously political charges. These two laws are over broad national security statutes that are transparently ridiculous; the idea that you can convict somebody and send them to jail for fifteen to twenty-five years for simply speaking truth to power, for exercising their fundamental rights of freedom of opinion and expression, freedom of peaceful assembly, freedom of political participation, is outrageous, and the lack of due process in their cases is transparently and brazenly ridiculous. Anybody who knows anything about the law will know that the way in which this is being handled is not only in violation of Nicaragua’s constitution and laws, but its obligations under international law.
But even if the judges were to observe the legal procedures correctly, there is another problem, which is the laws under which they are being prosecuted. How are the judges going to determine what the crime of conspiracy is?
There are two sets of violations here. One set of violations relates to the fact that the primary law they are being tried under, undermining national integrity, is an overly broad national security statute and these kinds of laws have been repeatedly found to be illegal under international law because they can be interpreted in any way that is deemed fit by a dictatorship, and they are not the kind of laws that will meet international standards. In addition, there are all these due process abuses, a secret tribunal, a violation of the right of a public hearing, no access to counsel, the judiciary is obviously not independent or impartial, the presumption of innocence that all criminal defendants are supposed to have is also violated because they are being presumed guilty.
You also have a right to bail under international law, and if you are not going to be given bail, then there is supposed to be a specific determination on the basis of facts presented, as to what reasons there might be for a person to not be able to be released on bail. Even if you believe these offenses to be accurate, these are not offenses like much more serious crimes of alleged murder, or others that would make a person a danger to society in a kind of situation where you would not want to grant them bail.
Up to this moment, no one has seen the political prisoners in prison and their families are demanding proof of life, because they are completely incommunicado. Can the Government of Nicaragua keep them in isolation indefinitely while they are being processed?
Can they and will they? We will have to see. Is that legal? Absolutely not. It is quite clear that extended disappearance under international law constitutes torture. Felix and Juan Sebastian and the others that have been forcibly disappeared for these very long periods of time are being tortured by Daniel Ortega. There is no doubt about that as a matter of international law and Nicaragua’s constitution says very clearly that international treaties signed on to by the government are binding domestically and as a matter of law. So, Ortega is not just violating international law but also Nicaragua’s own constitution and laws by holding people incommunicado for this extended period of time.
In the Court Hearing on August 27 it was also demanded that the Inter-American Commission on Human Rights of the OAS go to Nicaragua and visit the prisons of El Chipote, but the IACHR was expelled by the Ortega Government in December 2018, how can it return to the country?
That is more of a question for the Commission itself. I think we have to use every means at our disposal, every peaceful means at our disposal, to advance the freedom of Nicaragua’s political prisoners. I think the world understands, for all those who are paying attention, that the way that Ortega is operating is illegal and a violation of international law. The most important thing to understand here is that the way that he is acting does not demonstrate strength and courage, it demonstrates weakness and impotence. I say that because a powerful leader, a leader who knows he has the confidence of the people, would let anyone run for president, because their record is so strong and so good that no legitimate candidate would ever be able to compete against them and win.
If Daniel Ortega is so strong, why does he not let these people out of jail? Why did he not let any opposition party but one register for president and then he disqualified that party? And this is because he knows that if there is a free and fair election in November he will lose, and he will lose easily and not just against the prominent candidates but to any candidate at all.
One of the things that I take solace from, that I am pleased about, is that he is demonstrating how weak he is and that means that efforts by the international community, focused and targeted as I believe they will become, can have a profound influence on his behavior. So I think that ultimately there is a silver lining in the dark cloud, as they say, and I think that he will be forced to make some very difficult decisions in the coming months about what is more important to him, and ultimately I believe that he will be compelled to release Nicaragua’s political prisoners.
You have been called “the extractor” by the international press for your success in freeing political prisoners in totalitarian governments such as China or South Africa. How does Ortega compare with those governments and what chances of success can he have in freeing the detainees?
That is the key question, is it not? What I would say is that I have actually already gotten somebody out of jail who was a political prisoner in Nicaragua before, a number of years ago, this is a very different kind of case, but I represented Jason Puracal, an American citizen who had been given a twenty-two year prison sentence in Nicaragua on absolutely fabricated drug charges, and I was able to get him out after about a year of work.
What I would say is, Nelson Mandela, the former South African president who spent twenty seven years in jail, said it always seems impossible until it is done. This is how it feels right now for Nicaragua, for the Nicaraguan people, that this is just impossible, that he is holding on so tight and with such viciousness and such nastiness and imposing such horrific abuses that what hope could the Nicaraguan people have?
What I would say is that, that is always how it feels when you are in the middle of it, based on my experience having worked in more than twenty five countries around the world, but the Nicaraguan people are strong and proud, they want their freedom, they want the ability to elect their own president based on their collective wishes, and the Nicaraguan people can and will prevail against Daniel Ortega and his wife, ultimately.
I do not generally compare suffering between countries because I do not know that that is especially helpful, but what I would say is that while the abuses that he is committing, especially against anyone that he might view as opposing him, are profound and severe, that he can be made to change course, and I think this is what ultimately the international community has to do or will do, and I believe that there is a path forward to secure the release of the prisoners.
Based on your experience, what is more important in these processes, is it a legal matter of legal strategy, or international political pressure?
I think there are a wide array of strategies that can be undertaken through international bodies and bilaterally between Nicaragua and other countries around the world. In light of the way in which certain conduct is being criminalized by Daniel Ortega, I do not want to get into a lot of specifics you know in an interview, but I will say generally that there are several dozen things that the international community could be doing that they are not doing now, and we are going to be running down a wide array of potential things that could be undertaken to make very clear to Daniel Ortega that there will be profound and severe consequences if he maintains this course. That will be, as I said, both bilaterally but also multilaterally through organizations like the United Nations and the Organization of American States.
Do you expect that your defendants and the other political prisoners will be released before or after they are sentenced?
I am not able to predict that at this moment. Right now, it is quite clear that Ortega believes that he is going to go through with their condemnation and he is moving rapidly to make that happen. I have seen these kinds of situations play out in lots of different ways. At the end of the day Daniel Ortega is like a rabid dog in a corner, trapped and lashing out at anyone and everyone who comes near him. Obviously, a rabid dog can be very dangerous as anyone would know.
I think that when it comes to his belief that he can get away with what he is doing, everything is dependent on how the international community is reacting to what he is doing. More than anything else in the world he is afraid, he fears losing power, fear of justice and accountability, fear for his family being targeted, and the way that one needs to persuade a dictator to change course is to appeal to those fears.
I think that as his options narrow and he faces more and more difficult choices, he will have to decide how important it is for him to keep political prisoners in jail, and if he cares about that more than being able to hold on to power, or more than these other kinds of things happening. My experience has always been, having worked in, as I said, more than twenty-five countries around the world, that the way you get political prisoners out of jail is to dramatically escalate the cost of holding them above the benefits of holding them. I think that is what we intend to do and that is the path that we are on.
How are you litigating in this process? You are an international lawyer, and Roger Reyes, Felix Maradiaga’s lawyer, is now in prison. Juan Sebastian Chamorro and the other political prisoners are not represented by a Nicaraguan lawyer either.
As an international lawyer I litigate cases at various bodies, international tribunals. We will shortly be taking their cases to the United Nations working group on arbitrary detention. This is a five-member expert body at the United Nations that hears cases of this kind. I have taken more than fifty cases there over the course of my career and I will say that I have never lost. The other reason why that is maybe less impressive than it sounds is that I have only ever taken up cases against governments where I am convinced my clients are innocent of the charges against them and they have neither used nor advocated violence. As a lawyer, if you take up a case with strong facts to a court that is actually independent and impartial, then you should not be surprised that you win frequently.
I am very convinced that we will prevail in our case before the United Nations. Now, this does not automatically compel Ortega to release Felix and Juan Sebastian, this will be a further condemnation of Ortega and his regime, much as the Inter American Court of Human Rights as you noted earlier, has also demanded their immediate and unconditional release. My experience has been that these kinds of UN decisions are also very helpful in mobilizing the kind of pressure onto a government that is necessary to compel them to release political prisoners.