Nicaragua: Amnesty vs Crimes Against Humanity

Executive secretary of the Inter-American Commission for Human Rights Paulo Abrao speaks about Ortega’s self-amnesty.

The Amnesty Law can’t impede the investigation or punishment of human rights crimes. These laws have never been a solution for peace.

 

By Ismael Lopez  (Confidencial)

HAVANA TIMES – The executive secretary of the Inter-American Commission for Human Rights (IACHR), Pablo Abrao, knows first-hand the suffering of those who dared protest against Daniel Ortega’s regime. For that reason, the Amnesty Law that the regime prescribed for itself concerns him. Abrao sustains that the victims’ right to justice can’t be denied, nor can these crimes be left in impunity.

The IACHR documented 325 people killed during the anti-government protests that began in April 2018. The majority died at the hands of the police and paramilitary.

In this exclusive interview with Confidencial, Abrao speaks about the amnesty, seen by organizations that advocate for human rights as an attempt to assure the impunity of the police and paramilitary.

What’s your appraisal of the Amnesty Law that the Nicaraguan Parliament approved?

The ambiguity of the law’s contents concerns the Commission, since it could leave in impunity the grave human rights violations committed in the country. This would obstruct the establishment of the truth, justice, reparations and guarantees of non-repetition, as well as restricting the rights and guarantees of Nicaraguan society as established in the American Convention on Human Rights.

We’re paying close attention to its application. However, the international standard is very clear:  this law can’t impede the punishment of those guilty of these grave violations, nor the reparations to the victims, nor the guarantees of no repetition.

From the perspective of the Inter-American Commission for Human Rights, we carefully examine any amnesty law, because it’s been a mechanism used in the region to allow impunity and to avoid honoring the rights of the victims of grave human rights violations.

In our region, it was thought for a long time that impunity, a lack of reparations and silencing the victims’ demands was the price you pay to reach reconciliation. Today, we know that such reconciliations are apparent but not real, and that the truth ends up coming out. The victims must be recognized and compensated as part of any substantive reconciliation processes, according to the international standards in this area.

This law forbids those “benefited” to protest again…

This provision establishes: “the people benefited must abstain from perpetuating new events or conducts that repeat those which generated the crimes contemplated here”, otherwise the established benefit could be revoked. The ambiguity of said disposition could allow them [former prisoners] to become the object of new detentions for exercising their political rights of peaceful assembly, as well as the right to freedom of association and of expression. We’ll be watching closely this aspect of the application of the approved amnesty.

Furthermore, there’s another aspect of the Amnesty Law with which we should be very careful; this law can’t signify the obstruction of the search and clarification of the truth of the events, through judicial processes with the appropriate guarantees. This law must also not impede the punishment of those guilty of these serious violations, or compensation for the victims, or guarantees of no further repetition.

There are sectors of society that feel that the government is seeking to guarantee impunity for the crimes committed by their security forces and the paramilitary. What’s the IACHR’s assessment?

There’s a clause in Article #2 of the law that states that crimes regulated by international treaties which Nicaragua is part of are not covered by the amnesty. So, for example, the grave violation of any of the rights contemplated in the Inter-American Convention on Human Rights isn’t covered by the amnesty. I understand that there can be different ways of interpreting that phrase of the Amnesty Law. What I’m trying to say is that any interpretation that involves obstructing truth, justice, compensation and guarantees of non-repetition in cases of grave violations to human rights, will end up being contrary to the inter-American standards.

Different government functionaries have also been accused of crimes against humanity. How do the Amnesty Laws function with that type of crime?

Crimes against humanity aren’t subject to amnesty. Under international law, the states have an obligation to investigate human rights violations. That obligation acquires a particular and defined intensity and importance before the gravity of the crimes committed and the nature of the rights that have been harmed, such as in cases of serious human rights violations that have occurred as part of a systematic pattern or practice either applied or tolerated by the state, or in the context of massive and systematic or generalized attacks against some sector of the population.

Peace accords can never establish amnesty for crimes of genocide, war crimes, or crimes against humanity, or for serious infractions of human rights. Provisions aimed at impeding the investigation and punishment of those responsible for contravening the inalienable rights recognized by International Human Rights Law are inadmissible. States have an overriding duty to prevent the repetition of such events, and this depends in large part on avoiding impunity and satisfying the expectations of all of society and of the victims to be able to arrive at the truth of what happened.

What’s the experience of Latin America with amnesty laws?

There are a number of cases in the Inter-American Human Rights System in which the Commission and the Court repeatedly declared that such laws violate different dispositions of the American Declaration and the Convention on Human Rights.

For example, there’s the Case of the Massacres of El Mozote and surrounding areas in El Salvador, the Case of Gelman Vs. Uruguay, and the Case of Gomes Lund and Others (Araguaia guerrilla) vs. Brazil.

All of the region’s international organs for the protection of human rights and high international courts have pronounced on the scope of amnesty laws involving serious human rights violations, and have pronounced them incompatible with the international obligations of the States emitting them, because they violate the States’ international obligation to investigate and sanction such violations.

Do amnesties violate the victims’ human rights?

Yes. Amnesty laws in cases of serious human rights violations are a breach of the American Convention on Human Rights insofar as they impede the investigation and punishment of those responsible for the serious human rights violations; and as a consequence, the access of the victims and their family members to the truth of what occurred and the corresponding reparations. As such, they obstruct the full, opportune and effective exercise of justice in the pertinent cases. If the State apparatus acts in such a way that said violations remain unpunished and the full rights of victims aren’t restored as soon as possible, it can be asserted that they have failed in their duty to guarantee the free and full exercise (of such rights) to all those under their jurisdiction.

With the Amnesty Law now in force, what can the victims do to find justice?

The victims have the right to access justice. According to the inter-American standards, the state must assure – within a reasonable time – the right of the presumed victims and their family members to have every effort made to find the truth of what happened and to investigate, judge, and in its moment sanction those parties responsible.

When a state is party to an international treaty such as the American Convention on Human Rights, all of its organs, including its judges, are subject to that. The judges and organs charged with the administration of justice on all levels have an obligation to exercise an ex officio “control of compliance” of their internal norms with the American Convention. They must also take into consideration the interpretation that the Inter-American Court has made of the same issues.

The victims can present petitions to the Inter-American Commission for Human Rights when they consider that any OAS member state has violated the human rights outlined in the American Declaration on Human Rights, the American Convention on Human Rights, or any other international treaties involving human rights.

Can the Amnesty Law be revoked?

States that are parties to the American Convention are under an obligation to adopt provisions such that no one is removed from judicial protection and the exercise of their right to a simple and effective recourse under the terms of Articles 8 and 25 of the Convention.

It falls to the State, in conformity with Article 2 of the Convention, to adopt all measures to leave invalid any legal provision that might contravene the Convention.  Such provisions include those that impede the investigation of serious human rights violations, given that these lead to the victims’ powerlessness and the perpetuation of impunity, as well as keeping the victims and their families from knowing the truth of what happened. Also, laws of that nature lack legal effectiveness in the light of international law and their serious effect on the Rule of Law.