The Chain of Responsibility in Crimes Against Humanity
What allowed Ortega to become the new Somoza, is officials’ acceptance of servility for perks needed to carry out the dictatorship’s crimes.
By Uriel Pineda (Confidencial)
HAVANA TIMES – When referring to serious human rights violations in Nicaragua, it is common to centralize responsibility on Daniel Ortega and Rosario Murillo. In the collective opinion there are other faces of repression that come to mind. For example, police commissioner Ramon Avellan or the mayor of Matagalpa, Sadrach Zeledon. There are also those who see responsibility based on the chain of command, limiting it to the formality of the structures. Therefore, who should be held responsible for crimes against humanity when the day of reckoning comes?
I cannot offer a simple answer to the question for the diversity of crimes against humanity committed, and the prolongation of the sociopolitical crisis. It affects a significant universe of regime collaborators who have different levels of responsibility. What is clear is that Ortega and Murillo need collaborators to implement their repressive policy and that when the time comes, these collaborators must also assume their responsibility.
International jurisprudence provides us with a guideline to address the problem. The Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia reinforces the prevailing criterion in the Judgment of December 17, 2004 in the Kordic and Cerkez case by establishing that: “The Chamber of Appeals reiterates the jurisprudence according to which, knowledge on the part of the accused is required that there is an attack on the civilian population, as well as knowledge that their act is part of it” (para. 100).
This implies the existence of two essential elements, the knowledge of what is being done and knowing that what is done contributes to that purpose. If you think about the political prisoners, the policemen who participate in the detention; the police officers in charge of their prison conditions; the prosecutors who accuse them unfoundedly; judges who impose precautionary measures and unfounded sentences.
All of them are officials with legally established obligations. Failure to comply with these obligations due to illegal orders allows verification not only of the knowledge of the implementation of that policy, but also that their actions add to a chain of actions necessary for the serious Crimes Against Humanity to be committed; depriving victims of physical freedom in violation of the fundamental norms of international law.
Under the same premise, witnesses may incur liability, to the extent that their testimony adds to the chain of actions that results in the serious deprivation of liberty of political prisoners. Ironically, the refusal of witnesses to testify or their flight from the country in the face of a summons, confirms the existence of a policy of persecution by the regime.
Obviously, the severity of the sanction for collaboration can have wide margins of application, that can range between the disqualification from the exercise of public office and prison sentences. Such must be analyzed in light of international experiences and the findings derived from transitional justice processes adopted for this purpose.
It can be alleged with apparent justification that the main perpetrators are Daniel Ortega and Rosario Murillo, and one or another visible face of the repression. But this hypothesis raises two problems, the first of which is that it represents an obstacle to the right to the truth (in its individual and collective dimensions) and the second is that justifying in this way the non-observance of the legal duty of the different officials, undermines the guarantee of non-repetition.
In other words, what allowed Ortega to become the new Somoza, is the tolerance of servility for perks caused by the non-observance of officials’ legal duty [not to obey illegal orders]. Such, when the legal framework and the actions of officials should be the first containment dam for the atrocities that have occurred to date in Nicaragua. Subservience and perks have been the breeding ground for the arrival and permanence in power of dictators, therefore, the establishment of a responsibility scheme that reaches them and sanctions this structural servility will be necessary in the construction of a new Nicaragua.
*Master in Human Rights