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This article constitutes a presentation of the Report “Crackdown in Nicaragua – Torture, Ill Treatment, and Prosecutions of Protesters and Opponents”, published by Human Rights Watch in June 2019.

In April 2018, President Daniel Ortega’s government announced changes to Nicaragua’s pension system, provoking street protests in several cities that quickly escalated in size and number, fueled by widespread discontent with his 12-year administration. Protesters were met with violence by the National Police and heavily armed pro-government groups, with more than 300 people killed and more than 2.000 injured.

Following these events, and with the aim to shed light on what happened after the crackdown in the streets - with particular regard to the abuses suffered by demonstrators during arrests and while in detention facilities - in September 2018 Human Rights Watch (HRW) conducted field research in Nicaragua and Costa Rica, interviewing a total of 75 people among victims, family members and eyewitnesses.

The cases examined by HRW turned out to be consistent with a pattern of systematic abuses reported by other international human rights bodies, such as the Office of the High Commissioner on Human Rights (OHCHR) or the Inter-American Commission on Human Rights (IACHR). According to the cited 2019 Report, many of the people detained during the crackdown on protests were exposed to humiliating and degrading treatment and subjected to serious human rights violations that in some cases amounted to torture - including electric shocks, severe beatings, fingernail removal, asphyxiation, and rape.

Hundreds of detainees were also prosecuted for alleged crimes in connection with their participation in anti-government protests. On that occasion, serious violations of due process and other fundamental rights were encountered. In particular, protestors were reported to be held in incommunicado detention, subjected to closed door trials, and denied the right to confer privately with their defense lawyers. Furthermore, HRW found that, in several cases, the charges brought by the prosecutor’s office were not supported - and sometimes even contradicted - by the evidence presented.

Interviews also revealed that the National Police and pro-government groups started targeting those who were reporting on the crimes committed, including independent journalists and human rights defenders, subjecting them to harassment, intimidation, assault and arbitrary detention. Likewise, the Nicaraguan government was reported to have shut down critical news channels and subjected free press and independent media to cyber-attacks.

In this regard, it is important to stress that, under international human rights law, Nicaragua’s government has a specific obligation to prevent or punish serious human rights violations. Notwithstanding the above, at the time of writing, not a single investigation has been opened into members of security forces implicated in the cited abuses. On the contrary, it seems that President Ortega even promoted those top officials who bear responsibility for the crimes committed during the 2018 protests.

In this respect, the international community has an essential role to play to pressure the Nicaraguan government into addressing these violations, ensuring accountability and preventing the repetition of the crimes described in this Report. Targeted sanctions include inter alia imposing travel bans and asset freezes, as well as suspending all police funding, including any transfers of weaponry that could be used for committing other abuses.

Moreover, according to the principle of universal jurisdiction, national prosecutors can pursue individuals deemed to be responsible for certain core international crimes such as torture, war crimes, and crimes against humanity, even though they were committed elsewhere and neither the accused nor the victims are nationals of the country. Such prosecutions constitute an important part of international efforts to hold perpetrators of atrocities accountable, provide justice to victims, deter future crimes, and help ensure that countries do not become safe havens for criminals.

Written by Federica Pira

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Geneva Call is a neutral and impartial humanitarian organization aiming at promoting respect, by Armed Non-State Actors (ANSAs), for international humanitarian norms, thereby enhancing their compliance with their obligations under international law.  

In September 2018, Geneva Call issued a Report based upon the second edition of the Garance Talks. The meeting was held in 2017 and brought together ANSAs and experts from academia and various NGOs, to discuss the current challenges faced by ANSAs in the administration of justice. The core sessions of the 2017 Garance Talks addressed three related issues: i) the legal basis for the establishment of courts and judicial processes by ANSAs and in territories controlled by them; ii) deprivation of liberty by ANSAs, including the treatment of detainees; and iii) the procedural safeguards, rights and protection of detainees.

The administration of justice by armed groups is a frequent feature in armed conflicts. Practice shows that ANSAs often try their own forces, enemies and civilians. Obviously, the condition is that, when exercising this prerogative, they respect certain judicial guarantees. Notwithstanding this practice, however,  the legal basis for the establishment of such judicial mechanisms still remains unclear.

Common Article 3 to the Four Geneva Conventions of 1949 (CA3), which applies to non-international armed conflicts (NIACs), affirms that the passing of sentences and the carrying out of executions without previous judgements pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized people is prohibited with respect to persons taking no active part in hostilities. Additional Protocol II of 1977 (APII) then develops and supplements CA3, by establishing certain fundamental fair trial guarantees, such as the obligation to inform without delay, the principle of the individual criminal responsibility, the principle of legality, the presumption of innocence and privilege against self-incrimination.

Within this legal framework, some have interpreted the concept of “regularly constituted court” as only referring to a judicial mechanism established in accordance with the constitutional laws of the State. Accepting this interpretation would, however, mean recognizing that IHL does not allow armed groups to set up a parallel judicial system, completely separate from that of the State, with all the limitations that this view would bring (for instance, conflicts only fought between NSAGs would not be covered).

In this respect, the present Report proposes an alternative reading, based on the principle of equality of belligerents. According to this view, while the administration of justice is a governmental function par excellence, it is contended that, in the context of NIAC, international humanitarian law (IHL) creates equal obligations upon States and ANSAs. It follows that armed groups, like State actors, are granted the possibility to install judicial mechanisms based on their own regulations.

Unfortunately, the position just advanced raises some problematic scenarios. Many of these ANSAs, in particular those with a lower level of organization, have less potential to guarantee an administration of justice in accordance with international standards. Some authors have explained that this is due to the fact that they devote a large amount of their resources to their military, but it could also come as a consequence of their lack of knowledge of these safeguards. Moreover, according to their level of organization, ANSAs might not have a proper civil authority to ensure due processes or specific agencies prepared to carry out law enforcement operations.

Some conclusions can be drawn from the 2017 Garance Talks: first, when an ANSA does not have the capacity to respect the above mentioned safeguards, it shall not carry out judicial processes and alternative mechanisms should be sought; second, when the structure of the group varies and it is not stable, it will only carry out judicial processes as long as it has the capacity to do so; third, when the group has the capacity to carry out judicial processes in accordance with those fair trial guarantees recognized by international law, then everything feasible shall be done to respect them in full.